Bombay High Court
Daulatbanoo Sadruddin Nanavati vs Tazaldin Sadruddin Nanavati And 7 ... on 22 September, 2022
Bench: G.S. Patel, Gauri Godse
907-OSAPP-99-2022-IN-NMS-955-2018+.DOC
IRESH SIDDHARAM Digitally signed by IRESH
SIDDHARAM MASHAL
MASHAL Date: 2022.09.23 14:43:21 +0530
Iresh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO. 4247 OF 2022
IN
APPEAL NO. 99 OF 2022
IN
NOTICE OF MOTION NO. 955 OF 2018
IN
SUIT NO. 493 OF 2018
Daulatbanoo Sadruddin Nanavati ...Applicant
IN THE MATTER BETWEEN
Daulatbanoo Sadruddin Nanavati ....Appellant
Versus
Tazaldin Sadruddin Nanavati & Ors ...Respondents
WITH
APPEAL NO. 141 OF 2022
IN
NOTICE OF MOTION NO. 955 OF 2018
IN
SUIT NO. 493 OF 2018
Tazaldin Sadruddin Nanavati & Ors ....Appellants
Versus
Amin Abdul Aziz Rajwani & Ors ....Respondents
Mr Aspi Chinoy, Senior Advocate, Mr Vineet Naik, Senior
Advocate, with Mutahhar Khan, Amit Mehta, Vinayak Shukla
Page 1 of 8
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907-OSAPP-99-2022-IN-NMS-955-2018+.DOC
& Omkar Dalvi, i/b Amit Mehta for the Applicant in
IA/4247/2022.
Mr Cyrus Ardeshir, with Ziyad Madon, i/b VN Gupta for Appellant
in APP/99/2022 & for Respondents Nos. 1 to 4 in APP/141/2022.
Mr Navroz Seervai, Senior Advocate, with Prasad Shenoy & Nirav
Shroff, i/b Nirav Shroff for Respondents Nos. 7 & 8 in
IA/4247/2022 & in APP/99/2022, & for Respondents Nos. 3 & 4
in APP/141/2022
Dr Birendra Saraf, Senior Advocate, with Chaitanya Kotnis for
Respondents 5 & 6 (a) to (c) in IA/4247/2022
Mr Chaitanya Kotnis, for Respondents Nos. 1 & 2 in APP/141/2022
CORAM G.S. Patel &
Gauri Godse, JJ.
DATED: 22nd September 2022
PC:-
1. We had heard the matter before 11th August 2022. An order
of 10th August 2022 notes that we stood it over to 11th August 2022
for further hearing at 2.30 pm. On 11th August 2022, we made an
order saying that the matter would be listed for orders on 18th
August 2022.
2. On 18th August 2022 we noted the following:
"Parties have arrived at overall settlement and need
some time for fixing modalities.
Hence, S.O. to 07-09-2022 (High on Board) for filing
consent terms.
Ad-interim/interim, if any, to continue till then."
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3. The Respondents to the Appeal have made it clear ever since
18th August 2022 -- as they do today -- that there is in fact no
concluded settlement whatsoever. The reasons are unimportant.
4. The present Interim Application is entirely mischievous and
in our view is a gross abuse of the process of the Court. What is
sought in the Interim Application at page 10 is the following:
"(A) Order and direct that the settlement and
compromise of the Appeal and the said Suit No No. 493 of
2018 and Suit No. 263 of 2019 as contained in the said
Order dated 18th August 2022 read with the "Terms of
Proposed Settlement as on 10th August 2022" (Exhibit 'A-
2') be recorded by this Hon'ble Court and this Hon'ble
Court be pleased to order that the said Appeal and the said
Suits be disposed off in accordance therewith.
(B) Order and direct the Respondents to do all acts,
things and execute all such deeds as are necessary to
implement such settlement.
(C) Pending the hearing and final disposal of this
Application the further hearing and disposal of the said
Appeal and Suit No. 493 of 2018 and Suit No. 263 of 2019
be stayed by this Hon'ble Court."
5. The Interim Application annexes at Exhibit 'A' our order of
18th August 2022 extracted above. What it does not mention or
annex is our order of 7th September 2022, when we stood the
matter over to today "for passing orders". The reason is that even
on 7th September 2022 we were clearly informed that the parties
had not in fact reached a concluded settlement.
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6. The submission before us is that the 'settlement' can be
recorded under Order XXIII or under Order XII Rule 6 of the Code
of Civil Procedure, 1908.
7. Mr Chinoy relies on the decision of a Supreme Court in Saroj
Anand & Ors v Pralhad Rai Anand & Ors.1 This dealt with the effect
of a statement made by counsel -- and this is important -- on "the
merits of a lis in question". The Advocate for the defendants made a
statement as noted in paragraph 3 and this statement was noted in
paragraph 4 of the Supreme Court decision. Paragraphs 3 and 4 read
thus:
"3. One Shri Y.K. Kapoor, learned Advocate, appeared for
all the defendants. He made a statement on their behalf
that they were not disputing the share of the appellant
(sic plaintiff ) in all the properties in the suit. On that
premise, the question which arose for consideration of the
Court was to explore the possibilities of partition by metes
and bounds and/or sale of the joint properties. The counsel
stated that the defendants were ready and willing to get the
property sold and the first respondent-plaintiff may take his
share therefrom.
4. The learned Single Judge recorded the order as under:
"It is stated by the counsel for the defendants
that the defendants do not dispute the share
of the plaintiff in respect of all the properties.
He further states that it is not possible to
partition the property. The defendants are
ready and willing to get it sold, allowing the
plaintiff to take his own share. In case the
properties are not partible, the parties may get
1 (2009) 15 Supreme Court Cases 505
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a joint advertisement published in the
newspaper in the name of all the parties,
giving their contact numbers after consulting
each other within two weeks, so that the
family property brings better price instead of
making it a disputed property and selling it at
a lower price.
Interim order to continue till the next date
subject to the above modification."
(Emphasis added)
8. Then followed an application based on the statement as
noted in paragraph 8. In paragraph 11, the Court made some
observations regarding some of the Defendants and the authority of
the Advocate to appear. In paragraph 20, the Supreme Court said
that a decree can be passed on the basis of a concession of the parties.
The concession in the Saroj Anand case was about the shares of the
plaintiff in all the properties in the suit being undisputed.
9. Mr Chinoy contends that this decision is on para materia and
applicable to the facts of this case. It is not. There is no concession
and there never was.
10. What this Application really seeks to do is to twist and distort
a routine order of the court and deploy it to the disadvantage of the
other side. Worse, it seeks to drag the Court into the controversy
between the parties and to use an order of this Court as leverage.
We refuse to be dragged into the arena like this. What the
Application does not say is that advocate after advocates appeared
before us and said repeatedly, even after 18th August 2022, that
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there was no settlement. Ms Panda said so. Dr Saraf said so. And
most recently, Mr Seervai said so as well. At no point were we
persuaded even remotely that the Respondents were attempt to
renege on any concluded settlement. Our order of 18th August 2022
only notes what we were then told. It does not record a settlement.
In fact, we had orally made it very clear that we would not allow a
settlement unless we had seen its terms and satisfied ourselves as to
these. We said so because the litigation has been as long as it has
been fruitless, and it involves very many individuals. We had also
said that should the parties need assistance in resolving disputes --
and we are perfectly clear about what was offered (including two
bundles and the choice of one with a monetary compensation to the
other), we would do so. We had indicated, for instance, that any
issues involving the MCGM, permissions, divisions of lands, etc.,
might be better addressed by orders of this court than agreement of
parties. None of this particularization has come before us. To the
contrary: every counsel for the contesting Respondents has
maintained, and still do, that no settlement is possible. Mr Seervai,
for instance, says that his clients, two ladies in one group, have been
entirely cut out. To suggest therefore that our order notes a
concluded settlement is blatantly incorrect; and we ourselves know
it to be incorrect because the Respondents have repeatedly agitated
that issues to be settled have not been settled.
11. We have recorded no concession. We have merely noted a
statement made across the bar and as reported to us on that date that
there was an overall settlement but that modalities needed to be
worked out. We were not told what those modalities were nor were
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we told the terms of the settlement. None of this is recorded in our
order.
12. The attempt today clearly is to overreach this court and to
force it into taking a position that it was never prepared to take. It is
simply unthinkable that a routine and innocuous order noting what
was once said should now be attempted to be literally twisted to
become an actionable cause in the hands of one party to the
detriment of the other. We refuse to allow our orders to be abused in
this fashion. We record now with all possible emphasis that both
sides have never confirmed to us after 18th August 2022 or any time
earlier that the disputes have been settled. Our order dated 10th
August 2022 records that the Appeal is part heard and the same is
adjourned for further hearing. It was only by way of indulgence that
the Appeal was thereafter adjourned to enable the parties to work
out the modalities, if at all there was any amicable settlement
amongst them. Such indulgence shown is clearly misused by making
this application.
13. These are disputes between two families that have been
connected for a very long time in business and, we believe, by
marriage. We felt it would be appropriate if a negotiated settlement
could be worked out. That there are a large number of properties in
dispute and each of these would have to be covered by any
settlement. There would be different rights regarding different
members of the two families for each of these properties.
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14. Given the nature of Interim Application, the submissions
sought to be made, and the entire lack of bona fides in the
application, we have declined to hear Mr Chinoy on merits.
15. The Interim Application is, in our view, entirely
misconceived, not maintainable and possibly even mischievous. It is
dismissed.
16. Clearly there is no settlement. We concluded arguments long
time ago. We now proceed to list the Appeal for Orders/Judgment
on 30th September 2022.
17. At this stage, Mr Chinoy requests that copy of this order be
expedited; indeed, that it be released immediately. We see no reason
to make an exception to our routine for this Application. In the
normal course, our orders are transcribed, corrected, signed, and
uploaded either the next day itself or very shortly thereafter. The
suggestion seems to be that we should put aside all other work, get
this order immediately transcribed, spend time correcting it and
release it on a priority basis today itself. In the meantime, everything
else must be kept on hold. For what purpose and by what
entitlement we do not understand. The request is emphatically
rejected. The order will be uploaded when it is ready and not a
minute before.
(Gauri Godse, J) (G. S. Patel, J)
22nd September 2022
