Order 1

Order Details: Copy of Judgment
Pdf Text: Received on : 12/04/2018
Registered on : 06/06/2018
Decided on : 09/12/2020
Duration : Y-02: M-07:D-27
Exhibit :
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
S.C.SUIT NO.1389 OF 2018
CNR No.:MHCC01-004852-2018)
1. Mr.Indramani Gangaprasad Varma,
Age : 70 Years. Occ.: Business,
R/ at C-302, Bheem-NL Complex,
Dahisar East-Mumbai-400 068.
2. Mr.Laxman Gangaprasad Varma,
Age : 65 Yeras. Occ.: Agriculture & Business,
Through his Constituted Attorney
Mr.Indramani Varma having
C/o. C-302, Bheem-NL Complex,
Dahisar East-Mumbai-400 068. ... Plaintiffs
Versus
1. Mrs.Kanchan Budhiram Varma,
Age : Adult, Occ.: Housewife,
R/ at RS Pandey Chawl, Tulsethpada,
Near Municipal School, Bhandup-West,
Mumbai-400 078
2. Mrs.Kusumlata Janmejay Varma,
Age : Adult, Occ.: House Wife,
Residing at Vill And Post Sarpataha,
Dist.Jaunpur, U.P.-2231005.
3. Mrs.Saraswati Ramsudhar Varma,
Age: Adult Yrs. Occ.: House Wife,
Residing at Vill. And
Post Shivgadh-Kurmiana,
Dist.: Sultanpur, UP-2273304. ... Defendants
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 9th DECEMBER, 2020
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Mr.Navdeep Vora, ld. adv. for plaintiff.
None for defendant.
JUDGMENT
1. This is the suit for declaration that the order dated
03/101997 passed in terms of Consent Terms which is annexed at Exh.B
to the plaint is valid and same is binding upon the defendants.
Plaintiffs have prayed for mandatory injunction and directions to
defendants to comply with the order dated 03/10/1997 by executing
and registering the Release Deed and admitted execution in favour of
plaintiff no.1 in respect of property being Ganga Niwas, 12/14, Mody
Street, Fort, Mumbai-400 001 bearing Cadastral Survey No.1284 of Fort
Division, Municipal A/Ward No.2087, Registration District and Sub-
district of Mumbai City, before Sub-registrar of Assurances at Mumbai
which described in Exh.B annexed to the plaint and also in the form
appended of Exh.F-1 and/ or in such form as may be approved by the
Court. Plaintiffs have also prayed for mandatory injunction directing
the defendants in the event defendants inability to attend the office of
Sub-registrar of Assurances for execution and Registration of Release
Deed to execute and register the power of attorney and deed of
indemnity, in respect of above referred suit property and to hand over
the same to enable plaintiff no.1 to complete registration formality
without requiring personal presence of defendants and render all
further cooperation for compliance of consent order dated 03/10/1997.
Plaintiffs have also prayed for appointment of an officer of this Court to
execute and register the Release Deed and admitted execution thereof
in respect of above suit property in favour of plaintiff no.1 before Sub-
registrar of Assurances at Mumbai as regards any defendants remained
absent and/or avoiding compliance of the consent order dated
03/10/1997.
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2. Facts which gave rise to the suit are as under:-
3. Plaintiff no.1 and one late Chandrdeo Varma @ Ramchandra and
plaintiff no.2 are the sons of late Gangaprasad Varma and one Mrs.
Sirtaji Varma and Mrs.Israji Varma are the daughters of late
Gangaprasad Varma, who expired intestate leaving behind the sons and
daughters as aforesaid and his widow Mrs.Jamunadevi Varma, who died
on 07/12/1994. It is contended that plaintiff no.2 has executed a valid
and subsiding power of attorney in favour of plaintiff no.1 in respect of
suit property which is part of Release Deed. Late Chandrdeo Varma
expired intestate on 15/04/1969 leaving behind his widow Mrs.
Subberdevi Varma wrongly mentioned in the revenue record as
Mrs.Sabu Devi Varma and three daughters being the defendants of this
suit. Mrs.Suberdevi expired on 20/09/2005 intestate and the present
defendants alone represent the estate of their deceased parents. The
relationship of the heirs of late Gangaprasad Varma and the parties
interse to present suit is depicted in the family chart annexed to the
Release Deed as part of Annexture.
4. It is contended that deceased Mrs.Subberdevi had filed a suit in
City Civil Court against plaintiff nos.1 and 2 and their sisters Sirtaji
Varma and Israji Varma being Suit No.5284/1994 for share in the
business premises left behind by late Gangaprasad Varma. Said suit
was settled and order came to be passed by City Civil Court in the form
of Consent Order dated 03/10/1997. Copy of said order is annexed to
the plaint as Exh.A.
5. It is contended that as per the Consent Terms, defendants and
their late mother Mrs.Subberdevi Varma has realized all their respective
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rights, title and interest interalia in respect of one of the properties
being Ganga Niwas, 12/14, Mody Street, Fort, Mumbai-400 001 bearing
Cadastral Survey No.1284 of Fort Division, Municipal A/Ward No.2087,
Registration District and Sub-district of Mumbai City before Sub-
registrar of Assurances at Mumbai which described in Exh.B, however
the defendants were required pursuant to said order passed in terms of
Consent Terms to complete the formality of executing a Release Deed.
This is because as per said Consent order, it was specifically mentioned
by the Court that decree cannot be drawn up unless parties execute the
necessary Release Deed. The defendant in the present suit were
impleaded as defendant nos.6 and 7 and 8 in above referred earlier suit.
6. It is contended that after said consent order despite several
requests and follow up defendants including their mother were delaying
in executing the Release Deed, plaintiff no.1 took out a Notice of
Motion No.3491/1999 in above referred earlier suit and Court has
directed plaintiff nos.1 and 2 and sisters to transfer four bighas of
agriculture land to defendants and their mother which plaintiff no.1
and his brother have already done. Copy of Notice of Motion
No.3491/99 is annexed as Exh.C to the plaint. After said transfer
names of defendants were entered in relevant revenue record
evidencing transfer of four bighas land in faour of defendants. The
mother of defendants eventually died on 20/09/2005 and as a result all
her rights, title and annexed in said four bighas of land vested in
defendants. Thus, defendants have been exclusively cultivating said four
bighas land and enjoying the produce of the same. Plaintiff no.1 also
has been since 1997 or even prior thereto till date in the exclusive use,
occupation and possession of the suit property and he is exclusively
managing the day today affairs as exclusive absolute owner thereof,
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however only because of the formality of execution and registration of
Release Deed is not complied with by the defendants, their names are
still unnecessarily mentioned in the property register card and revenue
records.
7. It is contended that as regards the defendants, although they
relinquished their rights in respect of suit property as per the consent
order and never interfered with plaintiff no.1 in the use and enjoyment
of said property as exclusive owner, however, completing formality of
executing the Release Deed although defendants never denied to
complete, but they have delayed the same on one pretext or the other.
In fact upon the request of plaintiff’s advocate the defendants through
letter dated 08/10/2007 reiterated their stand that they have due
respect for the judiciary and law enforcing the machinery and they were
ready and willing to complete formality of executing the Release Deed
and defendants requested advocate of plaintiff no.1 to forward the copy
of draft Release Deed and the Power of Attorney for registration
purposes. Copy of defendant’s letter dated 08/10/2007 is annexed to
the plaint as Exh.D.
8. It is contended that plaintiffs have made so many discussions for
completing the formality of compliance of the order and the defendants
kept on promising the plaintiffs that they will do so. In or about the
year-2015, defendants inquired whether sisters of plaintiffs had
executed the Release Deed and then contended that let the sisters of
plaintiff no.1 execute the Release Deed and then defendants will also
execute. Pursuant to the agreement arrived at between plaintiffs,
plaintiff no.2’s undivided share in suit property came to the exclusive
share of plaintiff no.1 in furtherance of said consent terms and family
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arrangement between plaintiff no.1 and plaintiff no.2 as well as the two
sisters being defendant nos.4 and 5 in earlier suit, had executed three
registered power of attorney for purpose of executing the Release Deed
in favour of plaintiff no.1 which was executed and registered on
18/05/2015 under Sr.No.6030/2015 in the office of the Sub-registrar of
Assurances at Mumbai. Copy of said Release Deed is annexed to the
plaint as Exh.E.
9. It is contended that from above facts, it is clear that plaintiffs
have complied with their part with respect to the order passed in terms
of the consent terms. After execution and registration of the Release
Deed plaintiff no.1 had approached the time and again about execution
of said Release Deed and also handed over a draft Release Deed and
Power of Attorney to which defendant no.1 informed plaintiff no.1 that
she would consult other defendants and their advocates and assured
that defendants would revert after consulting them. Between 2015 till
September, 2017 upon meeting the defendants at various social
functions and gatherings, defendants only kept promising that they
were awaiting their advocates’ response and they will revert.
10. It is contended that since no response was forthcoming, plaintiff
no.1 through his advocate’s letter dated 29/09/2017 once again
enclosed the documents required for executing the Release deed to the
advocate for defendants and also sent the letters separately to each of
defendants and also plaintiff requested defendants to comply with the
order of the Court by completing the formalities of execution and
registration of the Release Deed, so that the decree could be drawn up.
Plaintiff no.1 also informed that registration office in Mumbai invariably
accepts documents executed in English and therefore advised that same
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can be interpreted and plaintiff also requested defendant to revert if any
clarification is required. Thereafter, plaintiff no.1 approached the
defendant nos.1 and 2 and made contact with defendant no.3 and
reminded them to complete said formalities, to which defendant’s only
kept telling that they would revert after discussing with their advocates.
Copy of letters sent by plaintiff through his advocate on 19/09/2017 is
annexed to the plaint as Exh.F collectively along with the proof of
delivery and dispatch. The copy of draft Release Deed, Power of
Attorney and draft indemnity required by the office of Sub-registrar of
Assurances are annexed to the plaint as EXh.F1, F2 and F3.
11. It is contended that plaintiff no.1 have been awaiting till filing the
suit, defendant’s response, however no reply has come either from
defendant’s advocate or from defendant’s so far. In the month of
January, 2018 defendants’ advocate again reiterated that all the three
defendants would soon execute the Release Deed once they get their
advocate’s approval. Recently, prior to filing of the suit, plaintiff no.1
has learnt from reliable source that defendants are going to sale said
four bighas of land for that purpose defendant no.1 is also going to
village to complete the transfer, for which defendant no.1 has booked
tickets for going to village on 14/04/2018 specifically for completing
the sale transaction as defendants are already settled in their
matrimonial homes.
12. It is contended that plaintiff no.1 having realized and
relinquished his right, title in said four bighas of land, has no concern
whatsoever defendants do with respect to four bighas of land but it is
highly on act of unbecoming on the part of defendants to delay the
compliance of the order passed by the Court in terms of Consent Terms
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dated 03/10/1997 and certainly an act of contempt for not executing
the Release deed in respect of suit property in favour of plaintiff no.1
and therefore court ought to take judicial note of the conduct of
defendants as their conduct has proved that they have no regard of
whatsoever nature to the undertaking given to the Court and
defendants have taken the same very casually.
13. According to plaintiff no.1, he apprehends that if defendants are
permitted to complete sale transaction of four bighas of land, they will
not have any inclination to execute the Release Deed and plaintiff no.1
will be left in lurch till indefinitely. It is alleged that defendants have
been avoiding the compliance of Court orders and thereby seeking to
avoid in complying with said consent order passed by the Court. It is
because of the lack of positive cooperation from defendants, the decree
in terms of consent terms could not be drawn up and as thus remained
in abeyance. In fact communication from the Court from time to time
for executing Release deed have been ignored by the defendants, which
the plaintiffs have handed over the copies to them. Hence, plaintiffs
have prayed to decree the suit.
14. It is contended that sisters of plaintiffs’ mentioned above and
signatories to the consent order who were impleaded as defendant
nos.4 and 5 to earlier suit are not made parties to present suit because
they have already complied with the consent order by completing the
formality of executing and registering the Release Deed and those
sisters are not concerned with the subject matter of present suit or the
reliefs as prayed for. Similarly, plaintiff no.2 also has executed and
registered the Release Deed in respect of suit property in fvaour of
plaintiff to take all actions with respect to suit property. Plaintiff
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however craves leave to implead the sisters as parties, if so required or
may be desired by this Court. It is contended that although plaintiff has
made out prima facie case for disposal of the suit on the basis of
documents attached to the plaint and there cannot be any defence to
resist the reliefs. If defendants intending to enjoy fruits of consent
terms in absolute and unfettered, must also do and cause to be done all
i.e. necessary to ensure that plaintiff no.1 also enjoys the fruits of
consent order in absolute and unfettered term. It is contended that suit
property is situated in Mumbai, consent order was passed in Mumbai
and defendant no.1 resides in Mumbai, however defendant nos.2 and 3
reside in Uttar Pradesh, the cause of action has arisen in Bhandup in the
month of April, hence this Court has exclusive jurisdiction to entertain
and dispose off this suit. Plaintiff has contended that this is the suit for
compliance of the order of the Court i.e. for declaration and mandatory
injunction therefore, it is valued to Rs.1,000/- for the purpose of Court
fees and jurisdiction and accordingly Court fee is paid.
15. It is contended that there is no question of any delay whatsoever
in filing the suit as defendants have continued to express their
willingness and readiness to abide by the consent order and the cause
of action is continues and recurring till filing of the suit. Defendants
have denied to execute the Release Deed, however cause of action for
the purpose of filing of present suit has finally arisen because plaintiffs
have recently learnt in the first week of April, 2018 that defendant no.1
has booked tickets to go to village on 14/05/2018 to sale the four
bighas of land and on the other hand defendants have continuously
kept plaintiff no.1 in lurch in respect of suit property hence according to
plaintiffs’ claim is not barred by law of limitation. Without prejudice to
above contention, it is contended that orders of the Court always
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remain alive till they are not complied or set aside by the Court of
competent jurisdiction and such orders do not lapse by matter of time
therefore, this court has inherent powers U/s.151 of CPC to exercise the
jurisdiction for preventing the abuse of process of Court of law. With
the help of those contention, plaintiffs have prayed to decree the Suit.
16. Order dated 20/10/2018 passed by my learned predecessor
shows that defendants have refused the service of writ of summons,
hence my learned predecessor has passed ex-parte order against
defendants, hence suit proceeded ex-parte.
17. From the contentions raised in the plaint, following points arise
for my determination.
POINTS FINDINGS
1. Whether plaintiffs’ claim is maintainable for
want of limitation? …. Negative
2. Whether plaintiffs are entitled to the reliefs
as prayed for?
…. Negative
3. What order and decree? As per final order
REASONS
Reasons against issue nos.1 and 2:
18. For proving their case, plaintiffs have filed at Exh.6 certified copy
of roznama, plaint and consent terms of suit NO.5284 of 1994. Exhs.7
and 8 are the postal acknowledgements in respect of letter Exh.8 dated
20/07/1999. Exh.9 is the certified copy of Udharan Khatavani
(Namuna NO.8) issued by Tahasil office of Machali Sahar, District,
Jablpur, Uttar Pradesh along with receipt of payment. Exh.10 and 11
are the postal acknowledgement and postal receipts in respect of letter
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dated 08/10/2007 sent by defendant’s advocate Mr.G.S.Bhat to
plaintiffs’ advocate. Exh.12 colly is the copy of notice sent by plaintiffs’
advocate to defendants’ advocate along with postal receipt and online
copy of track consignment of those RPADs. Exh.15 is certified copy of
original registered lease deed, Exh.16 colly. are the office copies of
Notice of Motion No.3491/1999 from Suit NO.5284/1994 and affidavit
filed in its support. Exh.17 is the evidence closure pursis.
19. Plaintiff no.1 Indramani Varma has filed his examination in chief
at Exh.4 in which reference of the documents filed with list of
documents Exh.5 is given. The facts mentioned in the plaint are also
mentioned in said affidavit. Plaintiffs have examined PW-2 advocate
Mr.S.P.Singh, who has mentioned in his affidavit that he had drafted
consent terms dated 03/10/1997 filed in Suit NO.5284/1994.
20. Roznama dated 01/02/2020 show that plaintiffs’ advocate has
started his arguments but it was noticed by the Court that plaintiff
himself has performed, the part of consent terms without getting
executed the Release Deed from defendants in respect of rights of
plaintiff related to the property referred in Suit NO.5284/1994. Court
has observed that it seems that plaintiff himself has not taken care of
getting executed the Release Deed and plaintiff has given the benefit to
defendants without taking care of his own rights. Court has further
observed that the alleged consent terms are dated 03/10/1997 and
plaintiffs have filed this suit for the year, 2018 therefore, this court has
directed plaintiff to satisfy Court as to how plaintiffs can claim the
declaration as sought in prayer(a) of the plaint beyond the period of
three years.
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21. Plaintiff’s advocate had filed written notes of argument in which
it is submitted that the consent terms dated 03/10/1997 Exh.6 were
filed by the late mother of the defendants (being the plaintiff of said
suit). Although said suit was filed for 1/6th share in the business
premises located at Fort, Mumbai, the consent terms were filed in
respect of various other matters between parties which were originally
not the subject matter of Suit No.5284/1994, because Order-23 Rule-3
of CPC enable the parties to comprise the suit even in respect of the
matters which are not subject matter of the suit. Plaintiffs’ advocate
referred Order-23 Rule-3 of
“COMPROMISE OF SUIT: Where it is proved to the
satisfaction of the court that a suit has been adjusted
wholly or in part by any lawful agreement or compromise,
in writing and signed by the parties or where the defendant
satisfies the plaintiff in respect of the whole or any part of
the subject-matter of the suit, the Court shall order such
agreement, compromise or satisfaction to be recorded and
shall pass a decree in accordance therewith so far as it
relates to the parties to the suit, whether or not “the
subject-matter of the agreement, compromise or
satisfaction is the same as the subject matter of the suit.”
22. Plaintiffs’ advocate submitted in written notes of arguments that
plaintiffs in present suit were defendant nos.2 and 3 in suit no.5284 of
1994 and defendant nos.2 and 3 of present suit were defendant nos.6
and 8 of said suit. According to plaintiffs' advocate as per clause(1)(i)
and 1(ii) of Consent Terms Exh.6, plaintiffs had paid the agreed amount
to plaintiff of Suit No.5284/1994. As per clause-4 of Consent Terms
Exh.6 plaintiffs transferred four bighas of land to defendant’s mother,
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which now stands in the name of defendant after their mother’s demise.
Exh.9 is the document showing said four bighas land in the names of
defendants. It is submitted that plaintiffs had withdrawn Suit
NO.3798/3912 of 1984 which was filed by the plaintiff against the
matrimonial uncle of defendant and said suit was withdrawn in
accordance with para no.9 of Consent terms Exh.6.
23. Plaintiffs’ advocate submitted that as per the consent terms City
Civil Court has categorically clarified that the decree shall not be drawn
unless the parties to the suit execute the necessary Release Deed. In
view of said conditional order there was no occasion for the plaintiff to
execute the consent terms unless Release Deed was execute. Thus,
according to plaintiffs’ advocate it was not the decree in the real sense
which could be executed as contemplated under Order-21 of CPC unless
Release Deed was actually executed by defendants. In order to get the
Release Deed, plaintiffs have been making several and repeated
attempts since the passing of consent terms and defendant only kept on
making the promise to execute the Release Deed.
24. Plaintiffs’ advocate submitted that plaintiffs took out Notice of
Motion No.3491/1999, its copy filed at Exh.16, in which plaintiffs were
directed by the Court on 08/09/1999 and again on 22/12/1999 to
transfer four bighas of land and defendants were directed to execute the
Release Deed thereafter. The Court again made clear that the decree
was not to be drawn unless the Release deeds were executed. Plaintiffs
have already transferred the Four bighas of agriculture land.
25. It is argued that defendants have continued to promise to
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execute the Release Deed and abide by the order of the Court and thus
according to plaintiffs’ advocate cause of action continue till filing of
present suit. Plaintiffs’ advocate has referred letter dated 08/08/1998
which is at Exh.16 and its reply dated 25/08/1998 given by defendant’s
advocate. It is submitted that by said letter defendants have reiterated
their stand that they are ready and willing to execute the Release Deed.
Plaintiffs advocate also referred the letters dated 02/11/1998 and
20/07/1999 sent by plaintiffs’ advocate. Copies of those letters are
annexed to Exh.16. Plaintiffs’ advocate also referred reply dated
08/10/2010 (EXh.11) sent b y defendant’s advocate which shows that
by said reply defendant’s have reiterated their stand that they are ready
and willing to execute the Release deed. Plaintiffs’ advocate lastly
referred the letter dated 29/09/2017 sent by plaintiffs’ advocate to
defendants and their advocates.
26. It is argued on behalf of plaintiffs that plaintiffs have pleaded
that Release Deed is to be executed in favour of plaintiff no.1 because
all other legal heirs including plaintiff no.2 have Release their rights in
suit property in favour of plaintiff no.1. It is argued that pursuant to
the family arrangement right between plaintiffs and other two sisters on
other part they have Release their rights in respect of suit property in
favour of plaintiff no.1.
27. In respect of limitation, plaintiffs’ advocate submitted that
plaintiffs’ claim is within time and not barred by law of limitation.
Defendant never contended that they would not execute the Release
deed. In the consent terms there was no time limit prescribed for the
performance of the terms by the parties. Defendant’s advocate
continued to express their willingness and readiness to abide by the
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consent orders dated 03/10/1997, hence according to plaintiff’s
advocate the cause of action is contineous and recurring. He has argued
that defendants have never denied to execute the Release deed. Hence,
plaintiffs’ advocate submitted that to uphold orders of the Court and to
prevent the abuse of process of law by the defendants this Court should
exercise its inherent powers U/s.151 of CPC and this Court should
direct defendants to comply with the consent terms.
28. He has argued that the cause of action for present suit arose in
the year first two week of April-2018 when plaintiffs have learnt that
defendant no.1 had booked the tickets to go to village on 14/05/2018
to sale the four bighas of land, which eventually defendants did after
filing of this suit until plaintiffs have no reasons to believe that
defendants do not have the intention to abide by their part of consent
term. It is argued that consent terms are in nature of formal
settlement/ agreement and it is further submitted that the Hon’ble Apex
Court has taken consistent view that it is duty of the Courts to give full
effect to family arrangement/ settlement without taking into the
technicalities. Plaintiffs’ advocate submitted that consent terms which
are sought to be enforced is nothing but family settlement between the
parties and this court should give effect to the same so that all the
parties get intended benefits in full letter and spirit.
29. It is submitted that the consent terms were executed by the
parties in the City Civil Court and defendants have executed those
consent terms in person, hence plaintiffs are seeking execution of
Release Deed in favour of plaintiff no.1 in respect of suit property which
is situated in Mumbai. The entire cause of action has arisen in Mumbai
therefore, this court has jurisdiction to entertain the suit. It is submitted
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that the suit proceeded ex-parte since this court has passed ex-parte
order. Further pleadings and the documents produced by the plaintiffs
have gone uncontested, hence plaintiffs’ advocate submitted that the
material submitted on record is sufficient to decree the suit.
30. In respect of query raised by this Court on 01/02/2020 plaintiffs’
advocate has filed further written notes of argument and submitted that
as per the clear order passed by the Court in consent terms, the Court
has recorded that the decree shall not be drawn up unless the parties
execute the necessary Release deed. Hence, the consent terms cannot
be considered as executable decree unless defendant execute Release
deed. The very purpose of filing present suit is to direct the defendants
to execute the Release deed and only there upon decree could have
been executed and not otherwise. Plaintiffs’ advocate referred various
case laws and submitted that the time was not held to be the essence of
consent decree and in present suit there was no stipulation of time
provided therefore, time is running continuously.
31. It is submitted that defendants all throughout connected through
their advocates that they were always ready and willing to perform their
part of contract. Therefore, all along the plaintiffs were ready to believe
that defendants would eventually perform all their part of contract. It is
submitted that plaintiffs are real paternal uncles of defendants and thus
plaintiffs had no reason to drag their nieces to the Court. Only when
plaintiffs learnt that defendants were going to sale their part of land
which came to them under consent terms, the cause of action arose for
filing present suit and therefore, according to plaintiffs advocate this
suit is within meaning of Article-113 and lying with Apex Court
Judgment.
32. It is submitted that admittedly in the consent terms also the
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parties have provided for the maximum for distribution of properties
and the plaintiffs have acted upon the consent terms thereby the
defendants are benefited and they have transferred the four bigas land
to third party. Admittedly defendants are bound to execute the Release
deed in respect of suit property in favour of plaintiff no.1. It is
submitted that plaintiffs thus are not precluded enforcement of their
rights confirmed upon plaintiffs under the consent terms. By seeking
benefit under the consent terms. By seeking benefit under the consent
terms by not executing the release deed it is submitted that defendants
are seeking to abuse the process of law and defendants intended to
violate solemn undertaking before the Court, hence according to
plaintiffs advocate this is the fit case that this court has exercised his
jurisdiction. It is submitted that plaintiffs’ submission are based on
Section 151 of CPC as there was family arrangement/ settlement in
respect of suit properties.
33. Plaintiffs’ advocate placed reliance on following case laws.
1. Bimal Kumar Gayed and Ors. V/s. Amiya Gopal Mondal & Ors.
MANU/WB/0080/1975 ( CALCUTTA HC) wherein it is observed
that...
“... In interpreting this judgment it was held in Vishnu V.
Ramchandra MANU/MH/0207/1932 :
AIR1932BOM466 that while it will be proper for the
decree to recite the whole agreement, the operative part
of the decree should be confined to the subject-matter
of the suit and any agreement forming the consideration
of the compromise as to matters extraneous to the suit
can be enforced in a separate suit.”
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2. Bhagvat Gopal Galapure Vs. Appaji Govind Galaure,
Second appeal no.1122 of 1915, MANU/MH/0089/1916,
wherein it is observed that,
“Speaking here for myself, I have not much
admiration for the equity rule that in buying or
selling or otherwise transferring real estate a man
must never be allowed to mean what he says. That if
he says the bargain is to be concluded within six
months, he must not be taken to mean six months,
but any reasonable time which, according to the
view of the Courts, may extend to six or sixty years.”
3. Shakti Bhog Food Industries Ltd. Vs. The Central Bank of
India & Anr., Civil Application No.2514 of 2020, where in
it is observed that....
“All these events have been reiterated in paragraph
28 of the plaint, dealing with the cause of action for
filing of the suit.
Indeed, the said paragraph opens with the
expression “the cause of action to file the suit
accrued in favour of the plaintiff and against the
defendants when the illegal recoveries were noticed
and letter dated 21.7.2000 was sent to the
defendants to clarify as to how the interest was
being calculated.” This averment cannot be read in
isolation. As aforesaid, on reading the plaint as a
whole, it is seen that the gravamen of the case made
out in the plaint is that the appellant noticed the
discrepancy in July, 2000 and immediately took up
the matter with the officials of the respondent Bank
at different levels and in response, the Assistant
General Manager of Regional Office of the Bank had
communicated in writing to the appellant vide letter
dated 9.7.2001 that its representation was being
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examined and comments of the Branch Office have
been invited and after receipt thereof the matter will
be decided as early as possible. As no further
communication was received by the appellant, it had
to make a representation to the Finance Minister,
Government of India, vide letter dated 31.10.2001
and presumably because of that, the appellant
received a communication from the Senior Manager
vide letter dated 8.5.2002 informing the appellant
that the cheques were being purchased at the
prevailing rates. This stand taken by the Senior
Manager was to side track the issue pending
consideration before the Assistant General Manager,
Regional Office referred to in his letter dated
9.7.2001. The case made out by the appellant is that
no communication was received by the appellant
from the Assistant General Manager, Regional Office
and instead, for the first time it was informed vide
letter dated 19.9.2002 sent by the Senior Manager of
the respondent Bank, that all actions taken by the
Bank are as per the rules and, therefore, the
appellant need not correspond in this regard any
further. This response of the Bank could also be
regarded as a firm denial or refusal by the
authorised official of the Bank, giving rise to cause of
action to sue the Bank.
Thus understood, the letter dated 8.5.2002 sent by
the Senior Manager of the respondent Bank, at best,
be reckoned as accrual of the cause of action to the
appellant to sue the respondent Bank. It is then
stated that the appellant received a communication
dated 19.9.2002, informing the appellant that it
should not carry on any further correspondence with
the Bank relating to the subject matter. Until then,
the appellant was having a sanguine hope of
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favourable resolution of its claim including by the
Regional Office of the respondents. The appellant,
therefore, had to send a legal notice on 28.11.2003,
to which the Bank responded on 23.12.2003.
Reckoning these dates, the plaint filed on 23.2.2005
was within limitation, as stated in paragraph 28 of
the plaint. Resultantly, the question of rejecting such
a plaint under Order VII Rule 11(d) of the CPC did
not arise.
The expression used in Article 113 of the 1963 Act is
“when the right to sue accrues”, which is markedly
distinct from the expression used in other Articles in
First Division of the Schedule dealing with suits,
which unambiguously refer to the happening of a
specified event. Whereas, Article 113being a
residuary clause and which has been invoked by all
the three Courts in this case, does not specify
happening of particular event as such, but merely
refers to the accrual of cause of action on the basis of
which the right to sue would accrue.
Concededly, the expression used in Article 113 is
distinct from the expressions used in other Articles in
the First Division dealing with suits such as Article
58 (when the right to sue “first” accrues), Article 59
(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) and Article 104 (when the plaintiff is “first”
refused the enjoyment of the right). The view taken
by the trial Court, which commended to the first
appellate Court and the High Court in second
appeal, would inevitably entail in reading the
expression in Article 113 as – when the right to sue
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(first) accrues. This would be rewriting of that
provision and doing violence to the legislative intent.
We must assume that the Parliament was conscious
of the distinction between the provisions referred to
above and had advisedly used generic expression
“when the right to sue accrues” in Article 113 of the
1963 Act. Inasmuch as, it would also cover cases
falling under Section 22 of the 1963 Act, to wit,
continuing breaches and torts.
4. Daulatbanoo Sadruddin Nanavati Vs, Tazaldin
Sadruddin Nanavati and Ors., Notice of Motion No.955
of 2018 in Suit No.493 of 2018, where in it is observed that....
“It is thus clear beyond reasonable doubt that both the
parties have partly acted upon the consent terms and
have also taken various benefits under the said consent
terms and. In my view, all the rights in the immovable
property, prior to the date of filing of the consent terms in
the said suit filed by the Nanavati Group, are superseded
by a fresh agreement by way of the consent terms entered
into between the parties. All the rights and obligations of
the parties in respect of all these properties thus would be
governed by the terms and conditions of the agreement
recorded in the said consent terms. In my view, in view of
the agreement between the parties recorded in the said
consent terms, neither the plaintiff, nor the defendants
can claim their right in the properties based on the
conditions prevailing prior to the date of filing of the
consent terms. It is not in dispute that the defendants
No.5 to 8 have already filed a separate suit, inter alia,
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praying for enforcement of the consent terms against the
plaintiff and the defendants No.1 to 4. The said suit is
pending adjudication.
A perusal of the prayers in this suit indicates that the
plaintiff has prayed for a declaration that the plaintiff and
the defendants No.1 to 4 have an undivided one half
share in respect of those properties and has prayed for a
decree of partition in respect of those properties. In the
alternate to prayers (a) and (b), the Plaintiff has prayed
for sale of those properties and for a direction to pay one
half share in the net sale proceeds to the plaintiff and
defendants No.1 to 4. In prayer (d), the plaintiff has
prayed for a judgment on admission under Order XII, Rule
6 of the Code of Civil Procedure, 1908 (for short 'the
CPC'), or in the alternate by way of a preliminary decree
or partition under Order XX, Rule 18(2) of the CPC in
respect of those properties.
In so far as issue no.1 is concerned, it is vehemently urged
by the learned Senior Counsel for the plaintiff and
defendants No.1 to 4 that since none of the suit properties
were coparcenary properties, but were joint properties,
there is a separate cause of action for seeking partition in
respect of each of such properties and thus, the suit, inter
alia, filed for seeking partition of six properties out of
several other properties is maintainable. On the other
hand, it was vehemently urged by the learned Counsel for
Respondents no.5 to 8 that there was no question of any
partition since the parties herein have agreed to the
partition of their properties in the mode and manner
prescribed under the consent terms, after carrying out
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development and, in any event, the plaintiff had no
option to seek partition only of selected properties in view
of the parties already having agreed upon partition of the
properties under the consent terms and having taken
benefits thereunder.
In my view, since the parties have brought their share and
interest in the joint properties into hotchpotch in the joint
venture by recording various terms and conditions, the
said properties can be dealt with only in the mode and
manner prescribed under the said consent terms. The suit
filed by the plaintiff, inter alia, praying for partition, is
pending and at the same time, the suit filed by defendants
No.5 to 8 seeking enforcement of the consent terms is also
pending. The rival claims of both the parties in the said
suit arising under the said consent terms, can be decided
in both these suits. In my view, the issue raised by Mr.
Chinoy, learned Senior Counsel for the plaintiff and Mr.
Andhyarunjina, the learned Counsel for defendants No.1
to 4 that there would be a separate cause of action for
filing a suit for partition in respect of each of the joint
properties, is an academic issue in the facts of this case.
There is no dispute about the proposition of law laid
down by the Courts in various judgments, some of which
are relied upon by the learned Senior Counsel for the
plaintiff and also by the learned Counsel for defendants
No.1 to 4 that if the property is not coparcenary or alien
property, one of the co-owners of such property is entitled
to file a separate suit for partition in respect of each
property. These principles, however, will not apply to the
facts of this case in view of the parties having recorded
their terms and conditions to bring their joint properties
into the hotchpotch of the joint venture project. Various
judgments relied upon by Mr. Chinoy, leaned Senior
Counsel for the plaintiff and Mr. Andhyarunjina, learned
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Counsel for defendants No.1 to 4 would not assist the
case of the plaintiff or the defendants No.1 to 4. Issue no.
1 is answered in the negative.
In so far as issue no.2 is concerned, since the parties have
agreed upon and provided for in the consent terms, the
mode, manner, distribution and division of the properties
of the two groups, the plaintiff cannot seek partition of
those properties in this suit. Issue no.2 is accordingly
answered in the affirmative.
So far as issue no.3 is concerned, the same is also
answered in the affirmative for the reasons recorded in
respect of issue no.2.
In so far as issue no.4 is concerned, in my view, both the
parties have acted upon the consent terms partly and
have availed of the benefits under the said consent terms
partly. Issue no.4 is answered accordingly on the aforesaid
terms....”
It is further observed that....
“In so far as the Judgment of the Hon'ble Supreme Court
in the case of Punjab & Sind Bank and anr. vs. S. Ranveer
Singh Bawa and anr. (supra), the Hon'ble Supreme Court
has held that the doctrine of estoppel is a branch of the
rule against assumption of inconsistent positions. One
who knowingly accepts the benefit of a contract is
stopped from denying the binding effect on him of such
contract. Since both the parties have partly acted upon
the consent terms and have availed of part of the benefits
under the said consent terms, the principles laid down by
the Hon'ble Supreme Court in the case of Punjab & Sind
Bank and anr. vs. S. Ranveer Singh Bawa and anr. (supra)
would apply to the facts of this case. I am respectfully
bound by the said Judgment.”
5. Krishna Bai Vs. Hari Govind Kulkarni, Second Appeal No.571
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of 1905, wherein it is observed that,
“The facts are that the parties entered into a compromise
which was embodied, under Section 375 Civil Procedure
Code, in a decree of the Court. That decree (inter alia)
contained a forfeiture clause. The defendant failed to pay
rent on due dates and the present suit was brought on
the decree for possession of the demised lands. The
question arising upon these facts, which has been
referred to the Full Bench, is whether the Court is bound
to enforce the forfeiture, of may relieve against it as
though the suit, instead of being founded on a consent
decree in the terms of the compromise, were founded on
contract. Upon this point there is a difference of opinion
between the High Courts of Bombay and Madras. The
view of the Bombay High Court as expressed in Shirekuli
Timapa Hegda v. Mahablya (1886) I.L.R. 10 Bom. 435
was that the doctrine of penalties was not applicable to
stipulations contained in decrees that of the Madras High
Court as expressed in Nagappa v. Venkatrao (1900) I.L.R.
24 Mad. 265 and affirmed in Lakshmaniswami Naidu v.
Ramswami Naidu (1902) I.L.R. 26 Mad. 31 that
inasmuch as the decree passed by the Court was a " mere
adoption of the contract which existed between the
parties to it, the Court must be taken to have adopted the
contract with all its incidents". It was therefore competent
to the Court to relieve against the forfeiture. I may
observe that Shirekuli's case, while purporting to be
based on, and follow the judgment of West J. in
Balprasad v. Dharnidar Sakhararn (1875) P.J. 636 : vide
I.L.R. 10 Bom. 437, ignores an important distinction, as
to the effect of which we do not think it necessary to
express a considered opinion, in disposing of this
reference. The latter was a case in which execution of the
decree itself was sought to be enforced. Both the Madras
cases, however arise out of facts which cannot in this
particular be distinguished from those in Balprdsad v.
Dharnidar. The dissent of the Madras High Court from
the view which has hitherto prevailed in this Court is
more positive and definite, than if it were limited to such
a case as Shirekuli Timapa v. Mahablya, and had taken
account of the distinction to be drawn between that, and
the case on which it is founded. Premising that I confine
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myself strictly to the facts of this reference, I am of
opinion, that the doctrine which found favour with the
learned Judges who decided Shire Kuli's case, is
erroneous. I think that it makes consent decrees of this
kind, when they are subsequently sued upon, too rigid,
and loses sight of an important principle which has more
than once been mentioned, in analogous cases, with
approval by some of the most eminent English Judges.
When parties compromise and request a Court to embody
the terms of the compromise in a decree, the Court has
not adjudicated upon the dispute, it has done no more
than sanction and stereotype, a contract made by the
parties themselves. And this it is bound to do. The only
condition imposed upon it is that the agreement should
be lawful. By private agreement, converted into a decree,
parties cannot empower themselves to do that which they
could not have done by private agreement alone- Great
North-West Central Railway Company v. Charleroi's
[1899] A.C. 114 If such a decree in virtue merely of being
a decree of Court is not competent to do that for the
parties which they might not do for themselves ; if in
other words it is on proper cause shown liable to
examination ; it follows logically and necessarily that
when a suit is afterwards brought upon it, it is to be
taken not as what has to be unquestioningly and literally
enforced ; but only as the indisputably correct
presentment of the contract which at the time it was
drawn up, the parties had made and wished to be
decreed. The difference between a consent decree
declaring the agreement of parties, and the agreement of
parties themselves, when the one or the other is sought to
be afterwards enforced, appear to me on general
principles to go no further than this, that in the former
case it would not be open to a party to question the
accuracy of the decree, as expressing what at the time
was the contract which had been made. As was observed
by Parke B. in Wentworth v. Bullen (1829) 9 Barn. &
Cress. 850 afterwards cited with approval by Erle C.J. in
Lievesley v. Gilmore (1866)1 C. P. 570, " The contract of
the parties is not the less a contract and subject to the
incidents of a contract, because there is superadded the
command of a Judge." Applying that principle to. the
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facts we here have to deal with, it appears to me, that
when a party brings a suit to enforce a consent decree of
this kind by which the terms of a perpetual lease were
roughly declared, with a forfeiture clause added, and
when the defendant prays for the ordinary relief against
that forfeiture, the Court is not precluded from treating
the decree as no more than the contract between the
parties, subject to the incidents of such a contract.
Amongst those incidents equitable relief against a
forfeiture is not the least important and is well
established.
A party to a contract embodied in a consent decree
cannot, I think, be held to have renounced any incidental
advantages or equitable reliefs of which, upon the face of
the contract itself as presented in the decree, he might
ordinarily have claimed the benefit.”
6. K. K. Velusamy Vs. N. Palanisamy, Civil Appeal nos.2795-2796
of 2011, where in it is observed that,
“The respondent contended that section 151 cannot be
used for re- opening evidence or for recalling witnesses.
We are not able to accept the said submission as an
absolute proposition. We however agree that section 151
of the Code cannot be routinely invoked for reopening
evidence or recalling witnesses. The scope of section
151 has been explained by this Court in several decisions
(See : Padam Sen vs. State of UP-AIR 1961 SC
218; Manoharlal Chopra vs. Seth Hiralal - AIR 1962 SC
527; Arjun Singh vs. Mohindra Kumar - AIR 1964 SC
993; Ram Chand and Sons Sugar Mills (P) Ltd. vs.
Kanhay Lal - AIR 1966 SC 1899; Nain Singh vs.
Koonwarjee - 1970 (1) SCC 732; The Newabganj Sugar
Mills Co.Ltd. vs. Union of India - AIR 1976 SC
1152; Jaipur Mineral Development Syndicate vs.
Commissioner of Income Tax, New Delhi - AIR 1977 SC
1348; National Institute of Mental Health & Neuro
Sciences vs. C Parameshwara - 2005 (2) SCC 256;
and Vinod Seth vs. Devinder Bajaj - 2010 (8) SCC 1). We
may summarize them as follows:
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(a) Section 151 is not a substantive provision
which creates or confers any power or jurisdiction on
courts. It merely recognizes the discretionary power
inherent in every court as a necessary corollary for
rendering justice in accordance with law, to do what is
`right' and undo what is `wrong', that is, to do all things
necessary to secure the ends of justice and prevent abuse
of its process.
(b) As the provisions of the Code are not
exhaustive, section 151 recognizes and confirms that if
the Code does not expressly or impliedly cover any
particular procedural aspect, the inherent power can be
used to deal with such situation or aspect, if the ends of
justice warrant it. The breadth of such power is co-
extensive with the need to exercise such power on the
facts and circumstances.
(c) A Court has no power to do that which is
prohibited by law or the Code, by purported exercise of
its inherent powers. If the Code contains provisions
dealing with a particular topic or aspect, and such
provisions either expressly or necessary implication
exhaust the scope of the power of the court or the
jurisdiction that may exercised in relation to that matter,
the inherent power cannot be invoked in order to cut
across the powers conferred by the Code or a manner
inconsistent with such provisions. In other words the
court cannot make use of the special provisions of
Section 151 of the Code, where the remedy or procedure
is provided in the Code.
(d) The inherent powers of the court being
complementary to the powers specifically conferred, a
court is free to exercise them for the purposes mentioned
in Section 151 of the Code when the matter is not
covered by any specific provision in the Code and the
exercise of those powers would not in any way be in
conflict with what has been expressly provided in the
Code or be against the intention of the Legislature.
(e) While exercising the inherent power, the court
will be doubly cautious, as there is no legislative
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guidance to deal with the procedural situation and the
exercise of power depends upon the discretion and
wisdom of the court, and the facts and circumstances of
the case. The absence of an express provision in the code
and the recognition and saving of the inherent power of a
court, should not however be treated as a carte blanche
to grant any relief.
(f) The power under section 151 will have to be
used with circumspection and care, only where it is
absolutely necessary, when there is no provision in the
Code governing the matter, when the bonafides of the
applicant cannot be doubted, when such exercise is to
meet the ends of justice and to prevent abuse of process
of court.
7. Hari Shankar Singhania and Ors. Vs. Gaur Hari Singhania and
Ors., Civil Appeal No.126 of 2005, wherein it is observed that,
“The concept of 'family arrangement or settlement' and the
present one in hand, in our opinion, should be treated
differently. Technicalities of limitation etc should not be put
at risk of the implementation of a settlement drawn by a
family, which is essential for maintaining peace and harmony
in a family. Also it can be seen from decided cases of this
Court that, any such arrangement would be upheld if family
settlements were entered into ally disputes existing or
apprehended and even any dispute or difference apart, if it
was entered into bona fide to maintain peace or to bring
about harmony in the family. Even a semblance of a claim or
some other ground, as say affection, may suffice as observed
by this Court in the case of Ram Charan v. Girija Nandini AIR
1966 SC 323.
In Lala Khunni Lal v Kunwar Gobind Krishna Nairain, the
Privy Council examined that it is the duty of the courts to
uphold and give full effect to a family arrangement. In Sahu
Madho Das & Ors v Pandit Mukand Ram & Anr., 1955 (2)
SCR 22 [Vivian Bose Jagannadhadas and BP Sinha JJ.]
placing reliance on Clifton v Cockburn, (1834) 3 My &K 76
and William v William, (1866) LR 2Ch 29, this Court held
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that a family arrangement can, as a matter of law, be implied
from a long course of dealings between the parties. It was
held that "..so strongly do the courts lean in favour of family
arrangements that bring about harmony in a family and do
justice to its various members and avoid, in anticipation,
future disputes which might ruin them all, that we have no
hesitation in taking the next step (fraud apart) and upholding
an arrangement."
The real question in this case as framed by the Court was
whether the appellant/plaintiff assented to the family
arrangement. The court examined that "the family
arrangement was one composite whole in which the several
dispositions formed parts of the same transaction"
In Ram Charan Das v Girjanadini Devi,(Supra), this Court
observed as follows:
"Courts give effect to a family settlement upon the broad and
general ground that its object is to settle existing or future
disputes regarding property amongst members of a family
The consideration for such a settlement will result in
establishing or ensuring amity and good will amongst persons
bearing relationship with one another."
[
In Maturi Pullaiah v Maturi Narasimham, AIR 1966 SC 1836,
this court held that "although conflict of legal claims in
praesenti or in future is generally a condition for the validity
of family arrangements, it is not necessarily so. Even bona
fide disputes, present or possible, which may not involve
legal claims, will suffice. Members of a joint Hindu family
may, to maintain peace or to bring about harmony in the
family, enter into such a family arrangement. If such an
arrangement is entered into bona fide and the terms thereof
are fair in the circumstances of a particular case, courts will
more readily give assent to such an arrangement than to
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avoid it.....”
“…..In Kale & Ors. V Deputy Director of Consolidation and
Ors.,[1976] 3 SCC 119 [VR Krishna Iyer, RS Sarkaria & S
Murtaza Fazal Ali, JJ.] this Court examined the effect and
value of family arrangements entered into between the
parties with a view to resolving disputes for all. This Court
observed that "By virtue of a family settlement or
arrangement members of a family descending from a
common ancestor or a near relation seek to sink their
differences and disputes, settle and resolve their conflicting
claims or disputed titles once for all in order to buy peace of
mind and bring about complete harmony and goodwill in the
family. The family arrangements are governed by a special
equity peculiar to themselves and would be enforced if
honestly made the object of the arrangement is to protect the
family from long drawn litigation or perpetual strives which
mar the unity and solidarity of the family and create hatred
and bad blood between the various members of the family.
Today when we are striving to build up an egalitarian society
and are trying for a complete reconstruction of the society, to
maintain and uphold the unity and homogeneity of the family
which ultimately results in the unification of the society and
therefore, of the entire country, is the prime need of the hour
the courts have, therefore, leaned in favour of upholding a
family arrangement instead of disturbing the same on
technical or trivial grounds. Where the courts find that the
family arrangement suffers from a legal lacuna or a formal
defect the rule of estoppel is pressed into service and is
applied to shut out plea of the person who being a party to
family arrangement seeks to unsettle a settled dispute and
claims to revoke the family arrangement The law in England
on this point is almost the same.
The valuable treatise Kerr on Fraud at p.364 explains the
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position of law, "the principles which apply to the case of
ordinary compromise between strangers do not equally apply
to the case of compromises in the nature of family
arrangements. Family arrangements are governed by a special
equity peculiar to themselves, and will be enforced if honestly
made, although they have not been meant as a compromise,
but have proceeded from an error of all parties originating in
mistake or ignorance of fact as to what their rights actually
are, or of the points on which their rights actually depend."
Halsbury's Laws of England, Vol.17, Third edition at pp.215-
216.
In KK Modi v KN Modi & Ors., [1998] 3 SCC 573 [ Sujata
Manohar & DP Wadhwa, JJ.], it was held that the true intent
and purport of the arbitration agreement must be examined-
[para 21] Further the court examined that "a family
settlement which settles disputes within the family should not
be lightly interfered with especially when the settlement has
been already acted upon by some members of the family. In
the present case, from 1989 to 1995 the Memorandum of
Understanding has been substantially acted upon and hence
the parties must be held to the settlement which is in the
interest of the family and which avoids disputes between the
members of the family. Such settlements have to be viewed a
little differently from ordinary contracts and their internal
mechanism for working out the settlement should not be
lightly disturbed."
Therefore, in our opinion, technical considerations should
give way to peace and harmony in enforcement of family
arrangements or settlements.”
34. I have given serious consideration to the pleadings, documents on
record and the to the written notes of arguments submitted on behalf of
plaintiffs. It is submitted that on behalf of plaintiffs that case of action
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in this suit continues, however unfortunately the plaintiffs were not
careful to take any step in getting executed the release deed from
defendants as per the consent term dated 03/10/1997 passed in Suit
NO.5284/1994. The consent terms were executed in the year, 1997,
plaintiffs had sent notice through their advocate to defendant in the
year, 1999 and thereafter they had sent another notice to defendants in
the year, 2015 i.e. after 18 years of the consent terms. Plaintiffs have
contended that repeatedly they were requesting defendants to execute
the Release Deed in terms of the Consent Terms dated 03/10/1997,
however nowhere in the plaint it is mentioned that on which specific
dates plaintiffs had made such requests to defendants. Plaintiffs who
had slept over their rights for more than 18 years and who have filed
this suit after 20 years from the date of consent terms dated
03/10/1997, in my opinion cannot contended that their claim is within
limitation. Plaintiffs are intending that this court should exercise
inherent powers U/s.151 of CPC for the error committed by the
plaintiffs and for their mistake of sleeping over for more than 18 or 20
years. The Court of law cannot exercise the inherent powers in favour
of the parties who are not careful about their own rights. Plaintiffs
themselves have executed Release Deed in favour of defendant,
however the question arises as to why at the time of executing said
Release Deed, plaintiffs have not insisted defendant to immediately
execute the Release Deed in favour of plaintiff. In such circumstances, I
find that plaintiffs’ claim cannot be called to be the claim covered by
law of limitation and hence, I find that plaintiffs cannot have the benefit
of cited case laws as this suit is filed after 20 years of the consent terms
dated 03/10/1997 for directions to defendants to comply those consent
terms, hence I find that plaintiffs are not entitled to the reliefs sought by
them. I have already come to the conclusion that plaintiffs claim is
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beyond law of limitation and therefore plaintiffs are not entitled to the
reliefs claimed in this suit. Hence, I have recorded my findings to point
nos.1 and 2 in negative and proceed to pass following order.
ORDER
1. Suit stands dismissed.
2. Decree be drawn up accordingly.
Sd/-
(K.P.NANDEDKAR)
09/12/2010 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 09/12/2020
Transcribed on : 31/12/2020
Signed by HHJ on : 01/01/2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
13/01/2021 04.50PM B.R.HATEKAR S.G.
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgment/Order. 09/12/2020
Judgment/order signed by P.O on 01/01/2021
Judgment/order uploaded on 13/01/2021
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