Wigbert Stanley Rodricks vs Om Vithal Co-Operative Housing ...
2023 Latest Caselaw 1203 Bom

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  PURTI
                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
  PRASAD                  ORDINARY ORIGINAL CIVIL JURISDICTION
  PARAB
 Digitally signed by
 PURTI PRASAD
 PARAB
 Date: 2023.02.10
                         INTERIM APPLICATION (L) NO. 3433 OF 2023
 15:02:29 +0530
                                           IN
                         COMMERCIAL APPEAL (L) NO. 3302 OF 2023

Wigbert Stanley Rodricks and Anr.                          ....Applicants/Appellants
      Vs
Om Vithal Co-operative Housing
Society Limited and Ors.                                   ...Respondents

                                      ----
Mr. Rakesh Agrawal a/w Mr. Darpan Jain, Mr. Kunal Patel, Mr. Vineet Jain
and Ms.Jill Rodricks for Applicants/Appellants.
Mr. Mayur Khandeparkar a/w Mr. Tushar Gujjar, Mr. Deepak Singh and
Ms.Jyoti Kukreja i/b S.L. Partners for Respondent No.1.
Mr. E.B. Sivakumar, 1st Assistant to Court Receiver present.
                                       ----

                                           CORAM : K.R. SHRIRAM &
                                                   RAJESH S. PATIL, JJ.

DATED : 6th FEBRUARY 2023

P.C. :

1. This appeal is impugning an order dated 23rd January 2023

passed by the learned single Judge by which appellants' Interim Application

(L) No. 2281 of 2023 came to be rejected.

2. Appellants took out the said Interim Application in disposed of

Commercial Suit No.238 of 2022 applying to the court to hold and declare

that the Consent Terms dated 23rd December 2022 that Respondent No.1 -

Society and Respondent No.2 - Developer had entered into in the suit were

not binding on applicants and that it was not enforceable against applicants

or premises, i.e. Office No.101, 1st Floor, Admeasuring 424 sq. ft. Carpet

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area, Om Vitthal CHS, Village Borivali, CTS No.324, Taluka Borivali,

Shimpoli Village, Borivali West - 400 092 (hereinafter referred to as the

Application Premises).

Consequently, injunction was sought to restrain Respondent

No.1 - Society and/or Respondent No.3 - Court Receiver from taking

possession of the Application Premises.

3. It is appellants case that pursuant to the Registered Agreement

for Sale dated 31st December 2020 that appellants had entered into with

Respondent No.2 - Developer, Respondent No.2 had sold the Application

Premises to appellants for a total consideration of Rs.80,00,000/-. As per

the Interim Application, appellants have paid approximately a sum of

Rs.74,00,000/- to Developer - Respondent No.2. It is also appellants case

that Respondent No.2 issued letter of possession dated 18 th March 2021. It

is appellants case that appellants have been occupying the said Application

Premises since October 2018 and Appellant No.2 has been carrying on his

trade and profession as an Architect from the said premises.

4. Before we go further we have to note that the building is not

yet complete, it is an under construction building and naturally No

Occupation Certificate has been issued by the Corporation which should also

mean appellants have been in illegal occupation of the Application Premises.

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5. Respondent Nos.1 and 2 had entered into said Consent Terms

and it is appellants case that it was without making appellants as parties to

the proceedings though appellants were in possession of the Application

Premises. According to appellants by virtue of the said Consent Terms,

applicants were in fact being dispossessed without opportunity being

granted to represent their case and the fact that applicant was in occupation

of the said premises was not disclosed to the court.

6. Mr. Khandeparkar raised a preliminary objection on the

maintainability of the appeal itself on the grounds that: (a) the provisions of

Order XXIII Rule 3 of The Code of Civil Procedure, 1908 (CPC) provides

only parties to the compromise can make an application with regard to the

compromise and applicants not being a party cannot seek setting aside of

the Consent Terms. Mr. Khandeparkar also submitted that appellants being

in possession of an under construction building are thus in illegal possession

being in violation of Section 353-A of the Mumbai Municipal Corporation

Act, 1888. Mr. Khandeparkar also submitted that under the Agreement for

Sale, appellants were entitled to obtain possession only upon full

consideration being paid by appellants and upon receipt of the Occupation

Certificate. Mr. Agrawal did not dispute this fact. Mr. Khandeparkar

submitted that therefore appellants were unlawfully put in possession of the

Application Premises by Respondent No.2 - Developer and at the behest of

Respondent No.2, filed this appeal.

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7. Mr. Khandeparkar also submitted that the agreement between

appellants and Respondent No.2 does not bind the society Respondent No.1.

8. Admittedly, public notice had been issued by Respondent No.1 -

Society with regard to the Notice of Termination dated 12 th October 2021

terminating Development Agreement with Respondent No.2 - Developer.

Advocate for appellants had responded through communication addressed

to Respondent No.1 vide letter dated 30 th December 2021. Mr. Agrawal

stated that appellants were not aware of the legal proceeding because that

was not disclosed in the notice. Mr. Khandeparkar responded, and correctly,

that Advocate for Respondent No.1, by a letter dated 20 th December 2021,

brought to the notice of appellants' Advocate that Respondent No.1 -

Society has initiated legal proceedings against Respondent No.2 in

pursuance of the termination of Development Agreement read with Power

of Attorney by virtue of Commercial Suit (L) No. 26905 of 2021 before the

Hon'ble High Court, Bombay and the same is pending. That is the suit in

which the said Consent Terms were filed on 23 rd December 2022, almost

one year later. Appellants did not take out any application to be made a

party to the said suit. Even after the Consent Terms were filed on 23 rd

December 2022, appellants waited till 22nd January 2023 to file the Interim

Application. The learned single Judge therefore very correctly did not

entertain the application and on the contrary has even stated that appellants

may take out its own independent proceeding in order to seek any

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declaration or injunction with regard to what they claim are their premises.

Learned single Judge has also made an observation that in view of the delay

no interference was called for.

9. Mr. Agrawal referred to a judgment of the Hon'ble Apex Court

in Triloki Nath Singh vs. Anirudh Singh (D) thr. L.Rs. and others 1 to submit

that the Hon'ble Apex Court has held that the challenge by stranger to

proceeding in separate suit where compromise decree has been entered into

is barred under Order XXIII Rule 3-A of The Code of Civil Procedure, 1908

and hence he has no remedy by way of independent proceeding to challenge

the said Consent Term.

10. In our view this judgment is not applicable to the facts of this

case. It will be open to appellants to file a separate action under the

agreement that he has entered into with Respondent No.2 - Developer to

enforce his rights and the forum where the action is filed will decide the

same on merits.

In any event, the Consent Terms is only between Respondent

No.1 and Respondent No.2 and it is open to appellants to also raise in that

suit that the Consent Terms are not binding upon them and Respondent

No.1 or Respondent No.2 will suitably respond thereto. In the

circumstances, we do not see any reason to interfere.

1 2021(1) Mh. L.J. 55
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11. Appeal dismissed with cost in the sum of Rs.1,00,000/- (Rupees

One Lakhs Only). Mr. Khandeparkar stated that the amount could be paid

to any charity. Appellants to pay this amount to "Free Ophthalmic Hospitals

Society" and send the proof of payment to Advocate for Respondent No.1

within two weeks from today. The account details are as under :

  Name of Bank Account        :   Bank of Baroda
  Account Name                :   Free Ophthalmic Hospitals Society
  Account Number              :   99350100003339
  Type of Account             :   Saving A/c
  IFSC Code                   :   BARB0DBPARE (5th character is zero)
  MICR Code                   :   400012246
  Branch Address              :   88 Madina Manzil, Dr.Babasaheb
                                  Ambedkar Road, Near Takiya Masjid,
                                  Parel, Mumbai - 400 012.
  Branch                      :   Parel

12. Consequently, all Interim Applications stand disposed.

(RAJESH S. PATIL, J.)                                    (K.R. SHRIRAM, J.)




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