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The Navjeevan Chit Fund Pvt. Ltd. & Another v/s Shirin Nooruddin & Others

    Notice of Motion No. 44 of 2017 in Appeal No. 733 of 1997 in Suit No. 869 of 1975

    Decided On, 10 July 2018

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE NARESH H. PATIL & THE HONOURABLE MR. JUSTICE G.S. KULKARNI

    For the Applicants: Ashish Kamat I/b M/s. L.C. Tolat & Co., Advocates. For the Respondents: Sandip Parikh, M.S. Shah I/b M/s Shantilal & Co., Advocates.



Judgment Text

Oral Judgment: (G.S. Kulkarni, J.)

1. This is a notice of motion in an appeal of the applicants/appellants (Original defendants in the suit), which was disposed of by an order dated 19th January, 2006 passed by the Division Bench (R.M.Lodha and Anoop V.Mohta, JJ (as their Lordships then were), in terms of the consent terms dated 19th January 2006 arrived between the parties. Under the consent terms the applicants who suffered an eviction decree dated 7th May 1997 in the suit in question, accepted and confirmed the same to operate against it and further entered into an arrangement with the respondent/plaintiff to retain the possession of the suit premises till 31st December 2016 on terms and conditions as agreed therein. The applicants gave an undertaking to the Court inter alia to vacate the suit premises on or before 31st December 2016. The undertaking was accepted by the Division Bench and contrary to this solemn undertaking the applicants continued to possess and occupy the suit premises. Thus undertaking given to the Court was brazenly violated by not handing over the suit premises to the respondent/plaintiff on or before 31st December 2016. Now, when almost more than one year has passed and the possession is overdue, to be handed over, and after almost 21 years of the eviction decree, the present notice of motion is moved by the applicants inter alia praying that the consent terms as accepted by the Division Bench and the order in terms thereof dated 19th January 2006 be set aside and the appeal is to be heard on merits.

2. The relevant facts are : A civil suit being S.C.Suit No. 869 of 1975 (for short 'the suit') which was instituted by the respondent-plaintiff (licensor) against the applicants-defendants (Licencees) praying for vacant possession of the suit premises and for damages and compensation. Amongst others the following issues were framed by the learned single Judge:

Issue no.1: 'Whether this Court has jurisdiction to entertain and try the suit?

Issue no.3: Whether the provision of the Bombay Rents, Hotel and Lodging Home Rates Control Act, 1947 is applicable to the suit premises alleged in para 2 of the writte

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n statement?'

It is stated that the present Notice of Motion is being moved in view of the provisions of Order 23 Rule 3A as an independent suit is barred by virtue of the said provision.

3. The learned single Judge answered issue no.1 in the affirmative and held that this Court has jurisdiction to try and entertain the suit. In answering Issue no.3 the learned single Judge held that the provisions of the Bombay Rents, Hotel and Lodging Home Rates Control Act, 1947 Act are not applicable to the suit premises.

4. The learned single Judge decreed the suit in terms of prayer clauses (a) (b) and (c) of the plaint by a judgment and order dated 7th May 1997 inter alia directing the applicants-defendants to deliver to the respondent-plaintiff quiet, vacant and peaceful possession of the suit property with further directions to pay to the respondent-plaintiff damages and compensation for the wrongful and illegal use and occupation of the suit premises for the period 1st March, 1973 to 25th July, 1975 along with interest at 12% per annum from the date of filing of the suit till judgment and thereafter at the rate of 6% per annum till payment, as also future damages and compensation for mesne profits at the rate of Rs.2000/per month from 26th July, 1975 till vacant possession of the suit premises was delivered to the respondent/plaintiffs.

5. The applicants being aggrieved by the judgment and decree dated 7th May 1997 passed by the learned single Judge filed the above appeal (Appeal no.733 of 1997.) In the appeal, as noted above the parties entered into a compromise in terms of the consent terms. Para 1 of the consent terms needs to be noted which reads thus:

'It is ordered and decreed that on 7.9.1997 passed in the Suit no.869 of 1975 in terms of prayers (a) (b) and (c) of the plaint is affirmed.'

6. Further, in paragraph 4 of the consent terms the parties agreed that the respondent/plaintiffs shall not be entitled to execute the decree for eviction in terms of prayer (a) till 31st December 2016 provided the appellants comply with the following :

(i) the appellants shall pay to the respondents on or before the 30/01/2006 a sum of Rs.9000/and continue to pay to the respondents on or before 10th of each succeeding month a sum of Rs.9000/compensation;

(ii) the said sum shall be inclusive of all taxes, levies and cess and other charges of every kind and nature whatsoever imposed by the government or the municipal corporation or any other authority as on 1/1/2006.

(iii) provided, however if the rate at which such taxes, levies, cess or other charges including electric and water charges are hereafter increased the appellants shall pay to the respondents their proportionate share.

(iv) If the appellants commit any two defaults in payment of the monthly sum of Rs.9000/- as stated in 4 (i) & (iii) above on or before the due date or within a grace period of 7 days thereafter the respondents shall be entitled to execute the decree after 2nd of such default.

7. In paragraph 7, the applicants agreed to hand over quiet, peaceful and possession of the suit premises without execution of the decree on or before 1st January 2017. Paragraph 7 of the consent terms read as under:

7. 'The appellants through their Directors/Partners/Proprietors undertake to file separate undertaking (1) to pay the compensation in time as agreed in 4 (i) & (iii), (2) not to create any third party right or part with possession of suit premises or any part thereof (3) and hand over quiet, vacant and peaceful possession of suit premises without execution of decree on the expiry of on or before 1/01/2017.'

(emphasis supplied)

8. The Division Bench accepting the undertaking of the applicants disposed of the appeal by the following order dated 19th January 2006 :

'The learned senior counsel and the counsel for the parties handed in the consent terms, marked 'X' for identification purposes.

2. The consent terms are signed by the appellant no.1 and appellant no.2 and also by their advocates. The consent terms are also signed by respondent no. 2 (a) for himself and as constituted Attorney of respondent nos. 2 (b), (c) and (d) by respondent no.9 for himself and as Constituted Attorney of respondent no. 3(a), 4,5,7 and 8 and by respondent no.3 for himself and as Constituted Attorney for respondent nos.6 and 10 and their advocates.

3. The appeal is disposed of in terms of consent terms. The undertaking given by the appellants in paragraph 7 of the consent terms is accepted.'

(emphasis supplied)

9. After about 21 years from the judgment and decree as passed in the suit and about 12 years from the Division Bench having disposed of the appeal in terms of the above order dated 19th January 2006, the applicants are before us in this Notice of Motion inter alia praying for setting aside of the consent terms and order dated 19th January 2006 passed by this Court on the principal ground that this Court did not have jurisdiction to try and entertain the suit. The prayers in the notice of motion we are called upon to decide read as under :

(a) that this Hon'ble Court be pleased to vacate/set aside the consent terms taken on record and marked 'X' for identification by an order dated 19th January 2006 passed in Appeal No.733 of 1997 in Suit No.869 of 1975 copies whereof are annexed as Exhibits 'A & A1 to the Affidavit in support of notice of motion.

(b) that undertakings recorded in consent terms taken on record and marked 'X' for identification by an order dated 19th January 2006 passed in Appeal No.733 of 1997 in Suit no.869 of 1975 and also in the affidavit of Balraj Gupta (since deceased) in his affidavit dated 19th January 2006 copy whereof is annexed as Exhibit 'F' to the affidavit in support of notice of motion be discharged by this Hon'ble Court.

(c) that after grant of prayers (a) & (b) above the Hon'ble Court be pleased to restore the Appeal No.733 of 1997 in Suit no. 869 of 1975 filed by appellants on file of this Hon'ble Court and a date for hearing and final disposal on its merits be fixed by the Hon'ble Court.

(d) Without prejudice to aforesaid prayers (a) (b) & (c) above and in the event of this Hon'ble Court comes to conclusion that appellants are not entitled for said reliefs prayed for in the notice of motion then that even the operation and effect of order that may be passed in present notice of motion be stayed for a period of 12 weeks;

(e) Without prejudice to aforesaid prayer (a) (b) & (c) above and in the event of this Hon'ble Court comes to conclusion that appellants are not entitled for said reliefs prayed for in the notice of motion the appellants be given further time of 12 months from 1st January 2017 to vacate the suit premises viz Nooruddin chambers, First floor formerly (Broach Steet) now Devji Ratansey Marg, Mumbai400 009 and/or the time for vacating suit premises be extended by this Hon'ble Court for a period of 12 months from 1st January 2017 or for such other period as this Hon'ble Court may deem fit and proper.

(f) that pending disposal of the notice of motion the operation and effect of the consent terms and order dated 19th January 2006 passed in Appeal no.733 of 1997 in Suit no.869 of 1975 copies whereof are annexed as Exhibits 'A & A1' to the affidavit in support of notice of motion be stayed by this Hon'ble Court.

(g) that pending disposal of the notice of motion, the respondents be restrained by an order of injunction of this Hon'ble Court from in any manner taking any steps to evict the appellants from suit premises viz Nooruddin chambers, first floor, formerly Broach Street, now Devji Ratansey Marg, Mumbai400 009.

(h) Ad interim relief in terms of prayer clauses (f) and or (g) above be granted by this Hon'ble Court.

(i) costs of the notice of motion be provided for by this Hon'ble Court. And

(j) such further and other reliefs as this Hon'ble Court may deem fit and proper and be granted to plaintiffs.'

10. In the affidavit-in-support of the notice of motion, the applicants contend that the suit was not maintainable before this Court, in view of the provisions of section 5 (8) and section 6 (1) of the Bombay Rents and Lodging Home Rates Control Act, 1947 (for short the 'Act'). It is contended that the issue of jurisdiction, as decided by the learned single Judge was one of the challenges in the appeal, which was not decided in view of the appeal being disposed of in terms of the consent terms.

11. Learned counsel for the applicants contended that the issue of jurisdiction can be raised at any stage of the proceeding. It is submitted that the parties could not have conferred jurisdiction on the Court and thus, the decree passed by the learned single Judge and further the consent order passed by the Division Bench is a nullity and was not binding on the applicants. In support of the contentions, reliance is placed on the decision in Sushil Kumar Mehta vs Gobind Ram Bohra (Dead) (1990) 1 Supreme Court Cases 193), Ferozi Lal Jain vs Man Mal and anr. (AIR 1970 SC 794) and Chiranjilal Shrilal Goenka (deceased) thr. Lrs vs Jasjit Singh & ors. (1993) 2 Supreme Court Cases 507).

12. On the other hand, learned counsel for the respondent/plaintiff submits that the notice of motion is grossly misconceived. It is submitted that the learned single Judge had framed a specific issue on the jurisdiction of the Court to try and entertain the suit qua the applicability of the Bombay Rents Hotel and Lodging Home Rates Control Act, 1947 being issue nos. 1 and 3. These issues were adjudicated by the learned single Judge in decreeing the suit. This adjudication was accepted in totality, by the applicants, when the applicants decided to compromise so as to dispose of the appeal in terms of the consent terms. It is submitted that now, after 12 years and when the consent terms have become executable, it is most inappropriate, unacceptable and mischievous for the applicants to raise the issue that the Court ought to have considered and decided the issue of jurisdiction, in disposing of the appeal. It is submitted that the conduct of the applicants is thus wholly objectionable in raising such issues. It is submitted that the applicants is also in breach of this undertaking given to the Division Bench and as recorded in its order dated 19th January 2006. It is submitted that not only in law but also on facts the applicants are not entitled for the reliefs as prayed in the notice of motion.

13. We have heard learned counsel for the parties. With their assistance, we have perused the record. It is not in dispute that the applicants suffered an eviction decree in respect of the suit premises as passed by the learned single Judge on 7th May 1997, in the respondent/plaintiff's suit being decreed in terms of prayer clauses (a) (b) and (c). As a consequence of the decree, the applicants were required to hand over vacant and peaceful possession of the suit premises to the respondent/plaintiff as also to pay to the respondent-plaintiff compensation from July 1975. The judgment and decree dated 7th May 1997 could have been immediately put into execution by the respondent-plaintiff so as to obtain the fruits of the decree. However, the applicants had preferred the appeal in question and in the appeal took a conscious decision to enter into a compromise dated 19th January 2006 whereby the applicants in terms, accepted the decree passed by the learned single Judge, in its entirety, namely in terms of prayer clauses (a) (b) and (c) as clearly indicated in para 1 of the consent terms as noted above. Not only the decree was accepted but, further the applicants fully reaped the benefits of the consent terms namely to enjoy the possession of the premises up to 31st December 2016 and thus postponed handing over the possession of the suit premises for an extended period up to 31st December 2016 (about 10 years) as recorded, in para 4 and 7 of the consent terms and thus brought about a situation that the decree would not be executable on or before 31st December, 2016.

14. Considering the judgment of the learned single Judge adjudicating the suit, in our clear opinion, this is not a case, where the court proceed to award the decree oblivious of its jurisdiction, it is also not that the parties erroneously proceeded on the assumption of the court having jurisdiction, nor the parties by consent conferred jurisdiction on the court. This is also not a case where the applicants (defendants) had not raised objection to the jurisdiction of the court, but a case where the objection to jurisdiction was raised by the applicants and in the adjudication of the suit the issue of jurisdiction was decided against the applicants namely that the High Court on its original side, had jurisdiction to entertain the suit and the provisions of the Bombay Rent Act were not applicable so that the dispute be adjudicated by the Small Causes Court. The applicants further thereafter preferred an appeal and in the appeal entered into consent terms and enjoyed the fruits of consent terms and retained the suit premises by postponing the execution of the decree to an extended period that is 31st December 2016.

15. By accepting the judgment of the learned single Judge decreeing the suit and postponing the execution of the decree for a period of almost 20 years and now, after more than a year of the decree becoming executable, the applicants now intend to defy the decree and retain possession of the suit premises by filing the present notice of motion raising a specious issue that the decree itself needs to be set aside, as there was no adjudication by the Division Bench on the jurisdiction when the Division Bench passed the order on 19th January 2006 disposing of the appeal in terms of consent terms. The applicants cannot approbate and reprobate in the same breath.

16. To our mind, the plea as urged on behalf of the applicants is thoroughly untenable as also dishonest to say the least. As noted above, this is not a case where the learned single Judge has proceeded to adjudicate the suit oblivious of the jurisdiction of the court to adjudicate the suit. The learned single Judge not only had framed the issue as to jurisdiction but also adjudicated on the same and held that the Bombay Rent Act was not applicable to the premises in question. This adjudication was accepted intotality by the applicants and further the applicants decided to benefit itself, by extending their possession and occupation of the suit premises up to 31st December 2016, by entering into consent terms filed before the Division Bench on 19th January 2006, in terms of which the appeal was disposed of. Accordingly, the applicants by not vacating the suit premises on or before 31st December 2016 the decree had became executable on 1st January 2017. There is no reason whatsoever as spelt out as to why immediately after the Division Bench passed the order disposing of the appeal in terms of the consent terms or during the long period of the applicants enjoying the suit premises till 31st December 2016, the applicants never dreamt or felt that the consent order as obtained by it was illegal and it be set aside on the ground of the court having no jurisdiction. In reality what the applicants want is a second inning and another chance to reopen the decree having accepted the same and in the circumstances as noted by us. The applicants are under an impression and/or are so given to understand that the orders/decree passed by the court can be reopened at any point of time. There appears to be neither a respect for law or for the orders of the Court, but an absolute audacity to act contrary to law on the part of the applicants. Thus, this is a clear case, where even remotely 'the justice' of the matter is not in favour of the applicants. Further the plea as urged in this notice of motion is also not bonafide but thoroughly dishonest. It is systematic modusoperandi adopted by the applicants namely, firstly to accept the decree and then to compromise the appeal by bringing about a mechanism by which the applicants would hold on to the suit premises, for a period up to about 31st December 2016 and then not vacate, and when the decree becomes executable raise a contention that the decree is not executable, asserting that the court lacked jurisdiction. Certainly, this is not a plea of a bonafide litigant, more particularly when the litigant has reaped the benefits of the adjudication.

17. We are, not at all, impressed by the submission as urged on behalf of the applicants that in the facts of the present case the well settled position in law that the plea of jurisdiction can be raised at any stage of the proceeding becomes available and for this reason the appeal needs to be reopened. There can be no two opinions on the said proposition that the plea of jurisdiction can be raised at any stage in given facts. The question is whether the applicants can advance such a plea in the facts of the present case. Having noted the facts, we are certain that the said plea is not available to be raised by the applicants.

18. This is a classic case where the applicants are openly defying and abusing the process of law in not only taking a somersault on the consent orders passed by the Division Bench but also violating the solemn undertaking given to the Division bench and accepted by the Court. The applicants have a very weak notion and understanding of the rule of law and the sanctity of the Court orders, even acting with lack of honesty to the agreement in the consent terms. The process of law cannot be left to be abused in this manner. Such category of litigants are required to be dealt sternly and with iron hands of the law.

19. Now coming to the decisions as relied on behalf of the applicants there can be no dispute on the law as laid down in the said decisions. The decision in Ferozi Lal Jain (supra) would certainly not be applicable inasmuch there was no prior adjudication on the issue of jurisdiction in the said case and in that context, the Court held that at no stage the Court was called upon to apply its mind to the said question. There was thus no adjudication on the issue of jurisdiction of the Court. In Sushil Kumar Mehta (supra) and Chiranjilal Shrilal Goenka (supra) the Court has reiterated the principles of law, namely that the decree passed by a Court without jurisdiction would be nonest and its invalidity can be set up whenever it is opposed or acted upon. These are settled legal principles. However, as noted by us above, in the facts of the present case, such a plea is not available to the applicants to reopen the appeal after about 21 years of the decree.

20. Before parting we may observe as to how the present notice of motion by any acceptable standards and norms under the Limitation Act is maintainable when it prays after about fifteen years of the Division Bench order (19th January 2003) that the same be set aside.

21. As sequel to the above discussion, looked from any angle the notice of motion is a gross abuse of the process of the Court which cannot be simpliciter dismissed. It is accordingly dismissed with costs quantified at Rupees Fifty thousand to be paid to the respondents within two weeks from today. Ordered accordingly.

22. The disposal of this Notice of Motion would not preclude the respondent/plaintiff to pursue the remedies available to it in law. All contentions of the parties in that regard are expressly kept open.
O R