Shri. Pancham Mahadev Vermaji ... vs Kuldeep Umaraosingh Ostwal
2023 Latest Caselaw 11277 Bom

2023:BHC-AS:33371-DB

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                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CIVIL APPELLATE JURISDICTION


                                      CIVIL APPLICATION NO. 3797 OF 2019
                                                     IN
                                         FIRST APPEAL NO. 1124 OF 2013

                                                   WITH
                                     INTERIM APPLICATION NO. 62 OF 2023
                                                   WITH
                                     INTERIM APPLICATION NO. 63 OF 2023
                                                     IN
                                        FIRST APPEAL NO. 1124 OF 2013


                 Shri Pancham Mahadev Vermaji Foundation
                 Mumbai.                                                        ..Applicant.

                                    v/s.

                 Kuldeep Umaraosingh Ostwal & Ors.                              ..Respondents


                 Mr. Kishor Patil a/w. Mr. Sameer Mhatre for the Appellant/Applicant.
                 Adv. Stenna Fernandes i/b. Ashish Suryavanshi for the Respondent
                 Nos.4, 91 to 94.
                 Mr. Mayuresh Lagu i/b. Mr. Sagar Patil for the Respondent No.10
                 Corporation.
                 Mr. P.S.Dani a/w. Mr. J.K.Shah i/b. R.J.Law for the Respondent No.6.2


                                                     CORAM : ANUJA PRABHUDESSAI, &
                                                              AMIT BORKAR, JJ.

DATED : 2nd NOVEMBER, 2023.

P.C.

1. The Applicant seeks recall of the consent decree dated 4th May,

2018, in First Appeal No. 1124 of 2013 arising from Special Civil Suit

No. 436 of 2012.

    P P SALGAONKAR                                                                                 1 of 4


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2. The Respondent nos.1 and 2 were the Appellants and the

Respondent Nos. 3 to 14 were the Respondents in the appeal and shall be

hereinafter referred to as the Appellants and the Respondents

respectively.

3. The subject matter of the suit was the property admeasuring 25930

sq. meters under Survey No. 204 Sub- Division 1, Survey No. 205 Sub-

Division 2, Survey No. 206 Sub Division 1 and 3, Survey No. 218 Sub

Division 3 and Survey No.219 Sub Division 3. 4 and 7 of Village

Bhayander, District Thane. The Appellants, who were the Plaintiffs in

the suit, claimed to be the absolute owners of the suit property. The

dispute between the Appellants-plaintiffs and the Respondents-

defendants resulted in filing a suit for declaration and injunction. The

suit was dismissed by the trial Court by judgment and decree dated

25.03.2013, being aggrieved by which the Appellants-plaintiffs had filed

the said appeal.

4. During the pendency of the appeal, the Appellants and the

Respondents arrived at an amicable settlement and filed the consent

terms. Being satisfied that the consent terms were filed by the parties

willingly and out of their own volition, this Court accepted the consent

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terms and disposed of the appeal with direction to draw the decree as per

the consent terms.

5. The Applicant claims to be the owner of the suit property by virtue

of gift deeds dated 8.2.2001 and 15.2.2002 executed in its favour by

Chandrakant Nagjibhai Patel. The Applicant claims that the Appellants

and the Respondents, having failed in the respective suits filed before the

Trial Court, have in collusion entered into consent terms in respect of the

property owned by the Applicant, without impleading it as a party to the

proceedings. It is stated that the consent terms are illegal, malafide and

are executed by playing fraud upon the Court.

6. It is not in dispute that the Applicant Trust had obtained loan of

Rs.2.30 Crores from Pen Co-operative Urban Bank Ltd., and mortgaged

the suit property as security towards the loan. The Trust defaulted in

repaying the loan, and the bank proceeded to recover the amount under

the provisions of SARFAESI Act, and invited offers from perspective

buyers. The offer given by the Appellants was accepted and on

payment of Rs.3,35,00,000/- Sale Certificate came to be issued in their

favour. Learned Counsel for the Applicant concedes that the Applicant

has not challenged the proceedings initiated by the Bank and the Sale

Certificate issued in favour of the Appellants. The Applicant-Trust

has not been able to demonstrate collusion or fraud as to justify recall of

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the consent decree. The contention that the consent terms are illegal

and/or are executed by playing fraud on the Court is devoid of merits.

7. Under the circumstances, the application is dismissed. Interim

Applications are disposed of in view of dismissal of the application.

                 (AMIT BORKAR, J.)                              (ANUJA PRABHUDESSAI, J.)




P P SALGAONKAR                                                                                           4 of 4