Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No.2165/2019 ..1.. InS.C.Suit No.1179/2015
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 2165 OF 2019
IN
S.C. SUIT NO. 1179 OF 2015
CNR NO : MHCC010060142019
Ravji Govind Ramparia,
Age : 65 Years, Occ.: Retired,
Residing At : 603, Manisha Heights,
B. R. Road, Mulund (West),
Mumbai 400 080. ...Plaintiff
Versus
1. Jitendra Ravji Ramparia,
Age : 40 Years, Occ.: Business,
2. Alpa Jitendra Ramparia,
Age : 35 Years, Occ.: Housewife,
Residing At : B/1/204, Sai Ashish
CHS Ltd., B. R. Road, Mulund (West),
Mumbai 400 080.
3. Punjab National Bank,
Having Address At :82/5,
Jai Apartment, Linking Road,
Santacruz (West), Mumbai 400 054.
4. Bhavesh P. Bhinde,
Age : Adult, Occ.: Business,
Residing At : R/No.10/1,
Bhaithi Chawl, Mirani Nagar,
Gawade Road, Mulund (West),
Mumbai 400 080. ...Defendants
Appearance :
Mr. Tripathi, Advocate for the Plaintiff.
Ms. Poonam Garde, Advocate for defendant No.1 and 2.
Ms. Samita Nangre, Advocate for defendant No.3.
-- 1 of 8 --
Notice of Motion No.2165/2019 ..2.. InS.C.Suit No.1179/2015
CORAM : HIS HONOUR JUDGE
SHRI AJIT N. MARE (C.R.No.3)
DATE : 6TH MARCH, 2021.
ORAL ORDER
The plaintiff has sought recalling or setting aside of
Consent Terms dated 05.04.2019 and restoration of suit No. 1179/2015
to the file of this Court for being heard on merits claiming that, the
consent terms were signed by the plaintiff under undue influence,
misrepresentation and that fraud is played upon him.
2. In brief, the plaintiff’s contentions are that, he had filed the
suit seeking declaration that, the plaintiff is sole owner of Flat No. 603.
The documents allegedly executed by the plaintiff in favour of
defendant No. 3 are forged and fabricated and defendant No.3 Bank did
not acquire any right, title, interest in the said flat. Defendants No. 1 to
4 are in collusion and have created certain documents in favour of
defendant No. 3 Bank mortgaging the flat in its favour under the guise
of alleged loan obtained by defendant No. 4 under the guarantee of
defendants No. 1 and 2, son and daughter in law of the plaintiff, who
had no right, title or interest in the flat. Criminal complaints were filed
by and against the plaintiff. Later the matter was discussed for
amicable settlement on the premise that, defendant No. 4 would pay
agreed consideration of the flat to defendants No. 1 and 2 and the
plaintiff, the plaintiff would vacate the flat on or before 31.05.2019 and
hand over possession to defendant No. 3 Bank. It was also given to
understand that the liability, if any, under the alleged loan facility given
to defendant No. 4 would be liability of defendant No. 4 only and
neither the plaintiff nor defendants No. 1 and 2 would be liable for the
same. On this understanding consent terms dated 05.04.2019 were
-- 2 of 8 --
Notice of Motion No.2165/2019 ..3.. InS.C.Suit No.1179/2015
filed in the Court and the suit was disposed. The plaintiff does not
know English and only knows Gujarati language. He had signed the
consent terms in Gujarati. Defendant No. 4 had made him understand
that, he should simply stand in the Court and say yes to all the queries
or questions put by the Court. The consent terms are not signed by the
advocate for the plaintiff or by the advocate for defendants No. 1 and 2.
The consent terms were never read over and explained to the plaintiff
in Gujarati. Thus, a fraud is played upon the plaintiff. An undue
influence is exercised by defendants No. 1 and 2 on him, who are in
collusion with defendants No. 3 and 4. The consent terms do not
provide for absolving the plaintiff and defendants No. 1 and 2 from the
liability of loan obtained by the defendant No. 4 from defendant No. 3
bank. The consent terms are, therefore, unlawful and void as those are
obtained under fraud, undue influence and misrepresentation.
Therefore, he has not vacated the suit flat. Thus, it is necessary to recall
the consent terms dated 05.04.2019 and to restrain defendants No. 3
and 4 from taking possession of the suit flat.
3. Defendants No. 1 and 2 have filed reply supporting the
plaintiff. Defendants No. 3 and 4 have not filed reply. However, the
advocate for defendant No. 3 has advanced oral submissions.
4. Heard advocate for the plaintiff and defendant No. 3.
Perused written notes submitted by defendants No. 1 and 2.
5. The present notice of motion is to be considered into the
light of the provisions of Order 23 Rule 3 of CPC and more particularly
its proviso. It provides that, where it is alleged by one party and denied
by the other that an adjustment or satisfaction has been arrived at, the
-- 3 of 8 --
Notice of Motion No.2165/2019 ..4.. InS.C.Suit No.1179/2015
Court shall decide the question. Order 23 Rule 3 further provides that,
where it is proved to the satisfaction of the Court that the suit has been
adjusted wholly or in part by lawful agreement or compromise, in
writing and signed by the parties, the Court shall order such agreement
be recorded and shall pass a decree in accordance therewith.
6. Bare perusal of Order 23 Rule 3 of CPC reveals that, it lays
down certain conditions. Those can be summarized as follows,
1. The Court has to be satisfied that, the suit has been adjusted
wholly or in part.
2. The adjustment of the suit shall be by a lawful agreement or
compromise.
3. Such compromise or agreement should be in writing and
signed by the parties.
7. In this case, the plaintiff has come with a case that, the
consent terms Exh.7 are not signed by his advocate as well as advocate
for defendants No. 1 and 2, whereas the advocate for defendants No. 3
and 4 have signed the consent terms. This is one of the grounds to
challenge the consent terms.
8. As mentioned earlier the agreement or compromise has to
be signed by the parties. Law does not require signatures of advocate
for the parties on such agreement or compromise, therefore, said
ground to assail the consent terms is not acceptable. Moreover, when
the roznama dated 05.04.2019 reveals that, while the consent terms
were being accepted by the Court, the advocate for the plaintiff,
defendants No. 1 and 2 as well as the plaintiff were present in the
-- 4 of 8 --
Notice of Motion No.2165/2019 ..5.. InS.C.Suit No.1179/2015
Court.
9. The plaintiff has further contended that, the consent terms
Exh.7 were not read over to him and he said simply yes to the questions
put by the Court at the instance of defendant No. 4.
10. Consent terms Exh.7 categorically mention that, there are
criminal proceedings filed by the plaintiff against defendant No. 4, so
also by defendant No. 4 against the plaintiff and defendants No. 1 and 2
which they had agreed to withdraw. The plaintiff has since beginning
claiming that, there is collusion between defendants No. 1 and 2 and
defendant No. 4 due to which his rights were in jeopardy. In such
circumstances, it is not only difficult but impossible to believe that the
plaintiff will act in accordance with the understanding given by
defendant No. 4 instead of relying on his advocate who was very much
present in the Court at the time of filing the consent terms as well as
while those were being accepted by the Court. Considering these
circumstances, it is also difficult to accept that, the plaintiff was not
aware of the contents of the consent terms at Exh.7. The proceedings
also indicate that similar consent terms were submitted to the Court on
01.04.2019 also at Exh.6.
11. What appears from the roznama that, the talks of
settlement were going on since July, 2018 and ultimately those
terminated in consent terms Exh.7. In such circumstances, also the
plaintiff’s contention that the contents of the consent terms were not
read over and explained to him falls to grounds. Such contention is also
not acceptable since the entire proceedings i.e. the suit, the notice of
motion etc. filed on behalf of the plaintiff are drafted in English. If the
-- 5 of 8 --
Notice of Motion No.2165/2019 ..6.. InS.C.Suit No.1179/2015
plaintiff’s contention, of want of knowledge of English, is accepted he
can even claim that he does not know contents of the plaint. Such
contentions raised afterthought cannot be accepted.
12. The plaintiff has further raised the ground of collusion
between defendants No. 1 and 2 and the defendant No. 4.
13. Perusal of the proceedings of the suit as well as present
notice of motion reveal that, in the suit defendants No. 1 and 2 never
objected to ground raised in the plaint. In present notice of motion,
they are thoroughly supporting the plaintiff. In such circumstances, the
plaintiff cannot take shelter of the unacceptable alleged collusion
between defendants No. 1 and 2 and defendant No. 4.
14. The advocate for defendant No. 3 has relied on judgment
dated 17.05.2018 of the Hon’ble Supreme Court in Civil Appeal No.
5248/2018 (Arising Out of SLP (C) No. 32031/2016) between The
Authorised Officer, State Bank of India V/s. M/s. Allwyn Alloys Pvt.
Ltd. and Ors. and submitted that this Court has no jurisdiction at all to
entertain the suit as its jurisdiction is barred by the provisions of Section
34 of the Secularization And Reconstruction Of Financial Assets And
Enforcement of Security Interest Act, 2002 and so even present motion
cannot be entertained by the Court.
15. In this case, my Predecessor has considered aspect of
jurisdiction on the first date of suit itself and considering the facts and
circumstances has observed that, this Court has primafacie jurisdiction
to entertain the suit.
-- 6 of 8 --
Notice of Motion No.2165/2019 ..7.. InS.C.Suit No.1179/2015
16. It also needs to be mentioned that, at this stage when
consent terms are sought to be set aside on the ground of fraud,
considering provisions of Order 23 Rule 3 of CPC, the aspect as to
jurisdiction to entertain main suit cannot be gone into at the stage,
since the enquiry under the proviso of Rule 3 of Order 23 of CPC is to
be made by the same Court which has disposed of the suit by accepting
compromise or agreement between the parties. In view of this, the
objections raised by the defendant No. 3 is not acceptable.
17. Considering the discussion above, therefore, it is clear that,
the plaintiff has not made out a case to set aside the consent terms at
Exh.7. No case of fraud, misrepresentation or undue influence etc. is
made out by the plaintiff. In the result, I hold that, the notice of motion
is meritless. It is taken out only with an intention to prolong the wait by
defendant No. 3 to have possession of the suit flat. In such
circumstances, I pass following order:
ORDER
Notice of Motion No. 2165/2019 is dismissed with
costs of Rs.3,000/ payable to defendant No. 3.
(AJIT N. MARE)
Judge,
Date : 06.03.2021 City Civil Court, Gr. Mumbai.
Dictated On : 06.03.2021
Transcribed on : 08.03.2021
HHJ Signed on : 12.03.2021
-- 7 of 8 --
Notice of Motion No.2165/2019 ..8.. InS.C.Suit No.1179/2015
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
12.03.2021 5.42 p.m. Mahendrasing D. Patil
(Stenographer (GradeI)
Name of the Judge H.H.J. SHRI. AJIT. N. MARE
(Court Room No. 3)
Date of pronouncement of
Order
06.03.2021
Order signed by P. O. on 12.03.2021
Order uploaded on 12.03.2021
-- 8 of 8 --