w w w . L a w y e r S e r v i c e s . i n



Swastik Builders, Satyam Apartments Next to Rowell Continental (Sunny International) & Others v/s Dr. Shobha & Others


Company & Directors' Information:- NEXT PRIVATE LIMITED [Active] CIN = U74999GJ2018PTC100944

Company & Directors' Information:- NEXT INDIA PRIVATE LIMITED [Active] CIN = U22219UP2019PTC123219

Company & Directors' Information:- A. P. APARTMENTS PRIVATE LIMITED [Active] CIN = U70100WB2010PTC150716

Company & Directors' Information:- APARTMENTS INDIA PVT LTD [Strike Off] CIN = U45201WB1973PTC029079

Company & Directors' Information:- B S BUILDERS PRIVATE LIMITED [Active] CIN = U45201DL2001PTC111390

Company & Directors' Information:- SUNNY CORPORATION PRIVATE LIMITED [Active] CIN = U72200DL2012PTC242645

Company & Directors' Information:- SATYAM APARTMENTS PRIVATE LIMITED [Active] CIN = U45201GJ1990PTC014423

Company & Directors' Information:- J BUILDERS PVT LTD [Active] CIN = U45200MH1982PTC027086

Company & Directors' Information:- BUILDERS CORPN PVT LTD [Active] CIN = U26921WB1959PTC024088

Company & Directors' Information:- SWASTIK APARTMENTS PRIVATE LIMITED [Not available for efiling] CIN = U45400DL1993PTC053783

Company & Directors' Information:- SUNNY BUILDERS PVT LTD [Strike Off] CIN = U45201GJ1985PTC007733

    LPA Nos. 539 of 2009 & 549 of 2009 in Writ Petition No. 6123 of 2004

    Decided On, 07 February 2020

    At, In the High Court of Bombay at Nagpur

    By, THE HONOURABLE MR. JUSTICE R.K. DESHPANDE & THE HONOURABLE MR. JUSTICE AMIT B. BORKAR

    For the Appellants: B.G. Kulkarni, Anand Parchure, Advocates. For the Respondents: R1, S.P. Bhandarkar, Advocate.



Judgment Text


Amit B. Borkar, J.

1. This case is illustrative of the difficulties, which a decreeholder has to encounter in recovering possession of immovable property in execution, after she has obtained decree of Competent Court. It is one of those cases, by no means rare, in which the execution proceedings have dragged down to inordinate lanes and led to consequent waste of public time and expense to the parties.

2. The crux of the matter involved between the parties is, as to whether the decree passed by the Consumer Court was inexecutable due to non-payment by decree-holder amount specified in the decree, within 30 days from the date of decree.

3. A brief recapitulation of facts would bring the matter in proper perspective for appreciation of issues involved.

On 12.1.1985, respondent no.1 entered into an agreement with the appellant-Developer for purchase of Block No.111 on the first floor of Satyam Apartments, situated at Wardha Road, Dhantoli, Nagpur, for a total consideration of Rs.95,000/-. Respondent no.1-decree-holder paid an amount of Rs.85,000/- to the Developer-appellant, but, in-spite of the said payment, neither Sale Deed was executed in respect of property in dispute nor the possession was handed over and, therefore, the decree-holder filed a Complaint bearing No.UTP-886 of 1993 before the Consumer Court in Nagpur, seeking relief of possession and execution of the Sale Deed. The Consumer Forum at Nagpur, on 3.4.1995 allowed the complaint of the decree-holder and directed the decree-holder to pay outstanding amount of Rs.10,000/- and M.S.E.B. charges. It was also directed that within one month of payment of Rs.10,000/- and charges of M.S.E.B., the appellant-Developer was directed to handover possession of shop premises complete in all respect. The Developer-appellant challenged the order passed by the Consumer Court, Nagpur, before the Consumer State Commission in Appeal No.889 of 1995 and the Consumer State Commission by its order dated 30.5.1996 was pleased to dismiss the appeal of the Developer. The Consumer Forum on 11.4.1996 issued a Certificate about nonsatisfaction of its order and accordingly, Special Darkhast No.190 of 1996 came to be registered before the Civil Judge, Senior Division, Nagpur. The appellant-Developer on 28.10.1996 filed an objection at Exhibit-13 under Section 47 of the Code of Civil Procedure, for dismissal of execution proceedings on the ground of failure to deposit amount as per the order of the Consumer Court. The Executing Court, by its order dated 7.7.1997, allowed the application below Exhibit-13 filed by the appellant-Developer and the Executing Court was pleased to hold that the decree-holder is not entitled to execute the decree and, therefore, dismiss the execution proceedings.

4. The decree-holder, being aggrieved by the order of dismissal of execution proceedings, initially filed Civil Revision Application No.772 of 1997, which was subsequently withdrawn, with liberty to file Writ Petition challenging the order of dismissal of execution proceedings. The decree-holder thereafter filed Writ Petition No.6123 of 2004 challenging the order dated 7.7.1997, thereby dismissing the execution proceedings filed by the decree-holder. After dismissal of execution proceedings, on 6.8.1997 the appellant-Developer sold the property in question i.e. Shop No.111 in favour of one Trilokchand s/o Birdichand Bhandari, the purchaser was made party-respondent no.4 to the Writ Petition.

5. The learned Single Judge of this Court, by order dated 16.10.2009 allowed Writ Petition No.6123 of 2004 and directed respondent nos.1 and 2 to deliver possession of the shop block within eight weeks from the date of order. It was also directed that respondent nos.1 and 2 shall pay compensatory costs of Rs.50,000/- to the decree-holder within eight weeks from the date of the order. It was made clear in the said order by the learned Single Judge that failure to deliver possession within the period prescribed by the learned Single Judge shall result in making payment of damages @ Rs.One thousand per day, till the actual delivery of possession.

6. The Developer has filed Letters Patent Appeal No.539 of 2009 challenging the order of the learned Single Judge dated 16.10.2009 and Letters Patent Appeal No.549 of 2009 is filed by Purchaser, who has purchased the shop block after passing decree in favour of respondent no.1-decree-holder. On 26.11.2009, this Court was pleased to admit Letters Patent Appeal No.539 of 2009 and was pleased to grant ad-interim stay, in terms of prayer clause (ii), subject to the conditions stated in the said order.

7. We have heard the learned counsels appearing for the appellants in both the appeals and the learned counsels appearing for the respondents in both the appeals.

8. It is submitted by the learned counsel appearing for the Developer that since the application below Exhibit-13 filed in execution proceedings was under Order XXI Rule 97 of the Code of Civil Procedure, Writ Petition against the order allowing the said application was not maintainable since the petitioner had remedy of appeal under Order XXI Rule 103 of the Code of Civil Procedure. It was further submitted that since the decree-holder has not paid balance amount of Rs.10,000/- and M.S.E.B. charges within a period of 30 days from the date of passing of order, the Executing Court was justified in dismissing the execution proceedings. It was also submitted that the appellant-Developer had issued three notices dated 10.4.1995, 11.9.1995 and 17.2.1996 calling upon the decreeholder to pay amount, as per the decree of Consumer Court and, therefore also the learned Single Judge was not justified in allowing the petition.

9. The learned counsel appearing for the Appellant in Letters Patent Appeal No.549 of 2009 i.e. for purchaser, submitted that the appellant in the said appeal is a bonafide purchaser for value and should not be put to prejudice.

10. The learned counsel appearing for respondent no.1 in both appeals i.e. decree-holder submitted that the order passed by the Consumer Court is not conditional, as construed by the Executing Court. The learned Single Judge has given cogent reasons for allowing the Writ Petition. The learned counsel relied upon the judgment of the Apex Court in the case of Jai Naraian Ram Lundia Vs. Kedar Nath Khetan and others, reported in AIR 1956 Supreme Court 356 and it is submitted that if a decree imposes obligations on both sides, then the executing Court cannot dismiss the execution unless and until the executing Court is satisfied that the decree-holder is not in a position to perform the condition imposed.

11. We have considered submissions of both sides and have carefully gone through the record of both appeals. After going through the record, it reflects sad State of affairs, particularly when a lady, who has entered into an agreement with Developer on 12.1.1985 and in-spite of paying more than 90% of consideration, is not getting the property agreed to be sold after 35 years. The learned Single Judge has considered the submissions made by both parties in detail and has given detailed reasons as to why he is recording the finding of dishonesty on the part of respondent nos.1 and 2 for not abiding by its commitment and the orders of the Consumer Court. The learned Single Judge has in paragraph no.7 considered the alleged communications of the Developer dated 10.4.1995, 11.9.1995 and 17.2.1996 and has recorded a finding that these communications are got up documents. The learned Single Judge has rightly relied upon the judgment of the Hon'ble Supreme Court in the case State of Maharashtra Vs. Rashid B. Mulani, reported in 2006 (1) SCC 407 and has quoted paragraph no.17 of the said judgment. It is further required to be noted that had Developer accepted the judgment of the Consumer Court in the year 1995 itself without filing an appeal against the said order, such communications could have been believed but, since the Developer had filed appeal against the order of Consumer Court before the State Commission and the same was dismissed in the year 1996, the learned Single Judge was right in disbelieving the communications sent by U.P.C.

12. There is no substance in the argument of appellant- Developer that the decree in question, which is passed by the Consumer Court was a conditional decree and in view of failure on the part of the decree-holder to perform her part of contract i.e. payment within 30 days from the date of its order, the decree could not have been executed. To appreciate the said submission, it is necessary to mention the operative order passed by the Consumer Court, which reads as under:

“The opposite party is directed to hand over possession of the shop premises complete in all respect agreed to be sold to the complainant within one month of the payment of Rs.10,000/- and the amount deposited by the oppositeparty with the M.S.E.B. for the complainant. The opposite party shall inform the complainant about the amount within 15 days of this order in writing.

The opposite party shall pay interest to the complainant @ 18.5 p.a. on the amount of Rs.85,000/- from 31.01.1988 till possession of the shop is given to the complainant.

The opposite party shall pay Rs.200/- as costs of this complaint to the complainant and bear its own costs”.

13. After carefully considering the language of the operative portion of order passed by the Consumer Court, it is clear that it is the Developer was required to inform the decree-holder about the charges of M.S.E.B., within 15 days from the date of the order. In view of finding by learned Single Judge that there is no communication made by Developer informing Decree-holder to pay M.S.E.B.charges, the obligation cast on Decree-holder will not come into effect. In so far as the period of payment by the decree-holder is concerned, the same was not specified in the decree of the Consumer Court. The decree of the Consumer Court was to the effect that it is upon the payment of Rs.10,000/- and charges of M.S.E.B, the Developer was to deliver possession of the shop premises within one month and, therefore, the period of one month to hand over possession will start after the amount is paid by the decree-holder and, therefore, the construction of the decree made by the learned Executing Court was completely erroneous.

14. The learned counsel appearing for the decree-holder was right in relying upon the judgment of the Hon'ble Supreme Court in the case of Jai Naraian Ram Lundiya Vs. Keder Nath Khetan (supra). The Hon'ble Supreme Court in paragraph no.18 has held as under:

“When a decree imposes obligations on both sides which are so conditioned that performance by one is conditional on performance by the other execution will not be ordered unless the party seeking execution not only offers to but, when objection is raised, satisfies the executing Court that he is in a position to do so. Any other rule would have the effect of varying the conditions of the decree: a thing that an executing Court cannot do.”

15. In the facts and circumstances of the present case, it is not in dispute that during pendency of the execution proceedings, the decree-holder has deposited the required amount and, therefore, it was boundant duty on the part of the Executing Court to deliver the possession and direct the Developer to execute the Sale Deed. But, having failed to do so, the learned Single Judge was justified in setting aside the said order.

16. In so far as submission about maintainability is concerned, it clear from order of executing Court that the Developer had filed application below Exh.13 only under Section 47 of the Code of Civil Procedure. Even otherwise also since Developer was party to the proceedings, he could have filed application only under Section 47 of the Code of Civil Procedure and not under Order XXI Rule 97 of Code of Civil Procedure. Therefore, Appeal under Order XXI, Rule 103 of Code of Civil Procedure was not maintainable against order of dismissal of execution proceeding.

17. Taking into consideration the facts, circumstances and reasons stated above, we are of the opinion that the learned Single Judge was justified in allowing the Writ Petition and directing respondent nos.1 and 2 to deliver possession and execute the Sale deed.

18. In so far as the Letters Patent Appeal No.549 of 2009 is concerned, the appellant is the purchaser, who has purchased a shop block admittedly after passing of the decree. The plea of the appellant in the said appeal is that the appellant is bonafide purchaser for value without notice. It is settled principle in law that onus of proof of good faith is upon the subsequent purchaser, who takes a plea that he is an innocent or bonafide purchaser for value without notice of the original contract. There is no ground raised or any statement in the appeal memo by the appellant-purchaser that he had made any enquiry or taken search in respect of title of property in dispute before producing the property in dispute. It is also not stated in the appeal memo that the purchaser had published public notice before purchase of property in dispute. To consider the submission about bonafide purchaser for value without notice, it is necessary to draw analogy from Rule 102 of Order XXI of the Code of Civil Procedure, which reads as under:

“Rule 102. Rules not applicable to transferee pendente lite - Nothing in Rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person”.

19. The Hon'ble Supreme Court in the case of Usha Sinha Vs. Dinaram and others reported in (2008) 7 SCC 144, had occasioned to consider the dispute of transferee from the judgment-debtor and in paragraph no. 17, the Hon'ble Supreme Court has held as under:

“Rule 102 clarifies that Rules 98 and 100 of Order 21 of the Code do not apply to transferee pendente lite. That Rule is relevant and material and may be quoted in extenso:

“102. Rules not applicable to transferee pendente lite - Nothing in Rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person”.

Bare reading of the rule makes it clear that it is based on justice, equity and good conscience. A transferee from a judgment debtor is presumed to be aware of the proceedings before a Court of law. He should be careful before he purchases the property which is the subject-matter of litigation. It recognizes the doctrine of lis pendens recognized by Section 52 of the Transfer of Property Act, 1882. Rule 102 of Order XXI of the Code thus takes into account the ground reality and refuses to extend helping hand to purchasers of property in respect of which litigation is pending. If unfair, inequitable or undeserved protection is afforded to a transferee pendente lite, a decree-holder will never be able to realize the fruits of his decree. Every time the decree-holder seeks a direction from a Court to execute the decree, the judgment-debtor or his transferee will transfer the pr

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operty and the new transferee will offer resistance or cause obstruction. To avoid such a situation, the rule has been enacted”. 20. The Apex Court in the said judgment of Usha Sinha (supra) has referred to the judgment of the Hon'ble Supreme Court in the case of Silver Line Forum Vs. Rajiv Trust reported in 1998 (3) SCC 723, wherein it has been held that the person purchasing property from the judgment-debtor during pendency of the suit has no independent right to property to resist, obstruct or object the execution of a decree. 21. Taking into consideration the fact that the purchaser has purchased the shop block in question after passing of the decree and, therefore, such person will not get any independent right, much less protection of bonafide purchaser for value without notice. Therefore, such purchaser cannot be said to be aggrieved by judgment of the learned Single Judge. 22. Considering the aforesaid judgments and the finding of dishonesty recorded by the learned Single Judge, it will not be equitable to interfere under Clause 15 of the Letters Patent. Therefore, both the Letters Patent Appeals are dismissed. 23. Taking into consideration the fact that respondent no.1- decree-holder is more than 74 years old and the agreement in question is dated 12.1.1985, the appellants are directed to hand over the possession of block no.111 on the first floor of Satyam Apartment at Wardha road, Dhantoli, Nagpur within four weeks from today. For the remaining part of the order passed by the learned Single Judge, the decree holder shall be entitled to execute the order of the learned Single Judge according to the law. 24. Put up the matter for compliance on 13.3.2020.<
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14-11-2018 Sunny George Versus Arul Mighu Rathna Vinayagar by its Executive Officer, Chennai High Court of Judicature at Madras
30-10-2018 M/s. Laxmi Narayan Builders & Suppliers Versus M/s. Ganpati Buildtech Pvt. Ltd. High Court of Delhi
25-10-2018 M/s. Jay Bhagwati Construction Co. Versus Haware Engineers & Builders Pvt. Ltd. High Court of Judicature at Bombay
23-10-2018 Manoranjan Singh Kanak Versus M/s. Baba Builders & Another National Consumer Disputes Redressal Commission NCDRC
18-10-2018 M/s. Fortune Builders, Bhopal Versus The Acit Central -Ii, Bhopal Income Tax Appellate Tribunal Indore
17-10-2018 Sarabjit Singh & Others Versus M/s. K. Soni Builders & Promoters (P) Ltd. Union Territory Consumer Disputes Redressal Commission UT Chandigarh
12-10-2018 M/s. Apurva Builders & Others Versus Madhukar Rambhau Bhuyarkar & Another Maharshtra State Consumer Disputes Redressal Commission Nagpur
04-10-2018 Sunny Khanna & Another Versus State of Chhattisgarh Supreme Court of India
04-10-2018 Bhumiraj Builders Pvt. Ltd. & Others Versus City and Industrial Development Corporation of Maharashtra Ltd. Through its Managing Director & Others High Court of Judicature at Bombay
03-10-2018 Vivek Kishorchandra Mehta &amp; Another Versus Puranik Builders Pvt. Ltd. &amp; Another National Consumer Disputes Redressal Commission NCDRC
03-10-2018 Sunny Paul Versus State of NCT of Delhi & Others High Court of Delhi
26-09-2018 Anal Apartments Co Op Housing Society Ltd. Versus Kushagra Developers, Partnership Firm High Court of Gujarat At Ahmedabad
14-09-2018 Asst Commissioner of Tax Versus Bricks N Stones Builders Income Tax Appellate Tribunal Hyderabad
10-09-2018 Neelam Rani Versus M/s. Singla Builders & Promoters Ltd. & Another Union Territory Consumer Disputes Redressal Commission UT Chandigarh
10-09-2018 M/s. Chandan Builders, through its partner Ashish Shah Versus Union of India through the Chief Engineer (AF) High Court of Judicature at Bombay