Bombay High Court

Abu Asim Azmi vs Nasir Jamal Shaikh on 8 August, 2024

2024:BHC-OS:12644

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Digitally signed
by MULEY
SHUBHAM
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
MULEY PRAVINRAO
SHUBHAM Date:
PRAVINRAO 2024.08.19
18:59:54
ORDINARY ORIGINAL CIVIL JURISDICTION
+0530

INTERIM APPLICATION (L) NO. 4852 OF 2024
IN
COMMERCIAL SUIT NO. 447 OF 2019

Abu Asim Azmi ...Applicant

In the matter between
Nasir Jamal Shaikh & Ors. ...Plaintiffs
Vs.
Abu Asim Azmi & Ors. ...Defendants

-----------------
Ms. Vinodhani Srinivasan a/w Chetan Yadav and Allen Mathew i/by R V & Co. for
the Applicant.

Mr. Aditya Bapat a/w Nutash Kotwal and Anushka Singh i/by Veritas Legal for
Respondent Nos.1 to 4.
-----------------

CORAM : ARIF S. DOCTOR, J.

                                                                       DATE    : 8TH AUGUST, 2024

                       P.C.:-

1. The captioned Interim Application has been filed under the

provisions of Section 152 of the Code of Civil Procedure, 1908 (CPC), by which,

the Applicant seeks to 'modify/rectify' the consent terms dated 4 th November

2020 entered into between the Plaintiffs and Defendants to the captioned Suit.

The Applicant was Defendant No. 1 to the said Suit. The Interim Application

seeks the following prayers, viz.

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"a. This Hon'ble Court may be pleased to modify/rectify area of Shop No. 14 Ground Floor New Bake House as "1450 sq. ft carpet area'' instead of "11 00 sq. ft carpet area'' in Consent Terms dated 4th November, 2020.

b. This Hon'ble Court may be pleased to modify/rectify paragraph 22 (3) of Consent Terms dated 4 th November, 2020 to mention the area of Shop No. 12, Ground Floor, New Bake House as 823 sq. ft. Carpet area. "

2. Ms. Srinivasan, Learned Counsel appearing on behalf of the

Applicant submits that the Applicant and the Defendant were erstwhile business

partners who had entered into the said consent terms by which they had inter

alia agreed to the distribution of various properties which were held jointly in

their names. She submitted that two such properties were Shop No. 12 and Shop

No. 14 both of which are situated on the ground floor of building known as Bake

House, which was located in Fort, Mumbai - 400 023.

3. Ms. Srinivasan then submitted that the Plaintiff was in the

exclusive management of the properties situated in Bake House including both

the said shops. She submitted that since there was Suit pending in the Small

Causes Court in respect of Shop No. 14 the area of Shop No.14 as stated in the

consent terms was on the basis the representation made by the Plaintiff. Ms.

Srinivasan pointed out that though the consent terms did not specify the area of

Shop No.12 there could no dispute that the area of Shop No.12 was of 823 sq. ft.

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as was clear from (i) the MoU entered into between the parties, based on which

the captioned Commercial Suit was filed and (ii) the averments made in

paragraph 3.7 (c) of the Plaint.

4. Ms. Srinivasan pointed out that the Applicant became aware that

the area of Shop was 1450 sq. ft. and not 1100 sq. ft. as mentioned in the consent

terms, only when the Applicant took the possession of the shop. Ms. Srinivasan

also placed reliance upon a plan of the ground floor of Bake House attached to

letter dated 8th July 2023 which showed that the area of to shop No.14 was 1450

sq. ft. and that of Shop No. 12 as being 824 Sq. Ft. . Ms. Srinivasan then placed

reliance upon a judgement of this Court in the case of M/s Rahul Trading

Corporation and another vs. Bernard Anthony Pereira and others .1 to submit that

this Court could always under the provisions of Section 152 CPC correct a

discrepancy in area in a consent decree. She then pointed out from the said

judgement that where there was a discrepancy between the area and the

boundary of any property, the identification of the said property by boundaries

would prevail.

5. Mr. Bapat, Learned Counsel appearing on behalf of the Plaintiff

opposed the present Application on various grounds including maintainability. I

do not deem it necessary to go into the merits of the Defendants challenge since I

am after hearing Learned Counsel for the Applicant, satisfied that the present

1 Order dated 6th March 2023 of this Court in Interim Application (L) No. 8297 of 2021 in Suit No. 2134 of 1981

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Application on the face of it is not maintainable under the provisions of Section

152 of the CPC. Section 152 of the CPC reads thus, viz.

"152. Amendment of judgments, decrees or orders.- Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties."

From a plain reading of Section 152, it is clear that the scope of Section 152 is

only to correct clerical or arithmetical mistakes or any accidental slip or

omission. What the present Application seeks is none of these. The Application is

plainly to add something in the consent terms which was not in the

contemplation of the Parties when the same were executed. It is the Applicants

own case pleaded case that the area of Shop No. 14 was made known to the

Applicant only after the Consent Terms were executed. The Applicant has

voluntarily executed the Consent Terms and thus accepted the area of Shop No.

14 as being 1100 sq. ft. Equally what is now sought for by way of prayer clause

(b) is for an addition to the Consent Terms. Also, crucially, while the Applicant

has in prayer clause (b) sought to add the area of Shop No. 12 as 823 sq. ft. in

the very plan upon which the Applicant has placed reliance on, the area of Shop

No. 12 is reflected as being 824 sq. ft.

6. Thus in my view, the the corrections sought to be made to the

Consent Terms cannot even remotely be said to be clerical or arithmetical

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mistakes or any accidental slip or omission on the part of the Court. In

examining the scope of Section 152 it is useful to to refer to a judgement of the

Hon'ble Supreme Court in the case of Ajanta LLP Vs. Casio Keisanki Kabushiki

Kaisha D/B/A Casio Computer Company Limited & Anr. 2 which held as follows: -

"24. The High Court applied its mind and passed a decree in terms of the settlement agreement dated 16-05-2019. Though, the High Court dismissed the application by refusing to entertain the application on the ground that it was filed under Section 152 CPC, we have considered the submissions of the parties to examine whether the appellant has made out a case for modification of the decree by treating the application as one under the proviso to Order 23 Rule 3 read with Section 151 CPC. There is no allegation either of fraud or misrepresentation on the part of the respondent. We are unable to agree with the appellant that there was a mistake committed while entering into a settlement agreement due to misunderstanding. Correspondence between the advocates for the parties who are experts in law would show that there is no ambiguity or lack of clarity giving rise to any misunderstanding. Even assuming there is a mistake, a consent decree cannot be modified/altered unless the mistake is a patent or obvious mistake. Or else, there is a danger of every consent decree being sought to be altered on the ground of mistake/misunderstanding by a party to the consent decree."

7. Hence it is clear that the Interim Application and the prayers which

have been sought for would not fall within the purport of Section 152 of the

CPC. Section 152 CPC is intended solely for the correction of clerical or

arithmetical mistakes or accidental slips or omissions in judgments, decrees, or

orders. It does not extend to modifications or additions to consent terms based on 2 (2022) 5 SCC 449

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new information or subsequent realizations of the Parties. In the facts of the

present case, the Interim Application is entirely based on material which has

come to the Applicants knowledge post entering into the consent terms. Thus, by

no means can the modifications now sought qualify as clerical or arithmetical

mistakes or accidental slips or omissions. Hence, judgment of this court in case of

M/s Rahul Trading Corporation and another (supra) would not be of any