Notice of Motion No.3734 of 2011,Notice of Motion No.920 of 2010,Suit No.880 of 2010,Chamber Summons No.524 of 2010,Chamber Summons No.613 of 2015,Execution Application (L) No.141 of 2008,Suit No.1626 of 2006

20th April, 2018.

Petitioner Counsel: Mr. G.S. GODBOLE, with Mr. Y.V. DIVEKAR and Mr. ROHAN KARANDE, i/b DIVEKAR & CO., Mr. ZUBIN BEHRAMKAMDIN, with Mr. ANUPAM SURVE, Mr. NIKHIL MUTHA and Ms. PRITIKA LOBO i/b M/s. NANU HORMUSJEE & CO.
Respondent Counsel: Mr. VISHAWAJEET V. MOHITE, Mr. R.Y. SIRSIKAR & Mr. SANDEEP PATIL, Mrs. UMA PALSULEDESAI

Cases Cited:
State of MP Vs. Brijesh Kumar Awasthi, (1997) 4 SCC 472 [Para 31]
A.A. Gopalakrishnan Vs. Cochin Devaswom Board & Ors, 2007 ALL SCR 2891=2007(7) SCC 482 [Para 31]
Som Nath Setia Vs. Ravi Setia, Civil Appeal No. 6863/2009, Dt.7.10.2009 (SC) [Para 31,32]
Bhau Ram Vs. Janak Singh, 2012 ALL SCR 2333=(2012) 8 SCC 701 [Para 31]
P.V. Guru Raj Reddy Vs. P. Neeradha Reddy, 2015(2) ALL MR 986 (S.C.)=(2015) 8 SCC 331 [Para 31]
Fatmabai Vs. Sonbai, 13 BLR 573 (1911) [Para 31]
Ramchandra Govind Thomare Vs. Jayanta, ILR (1921) 45 Bom 503 [Para 31]
Dattatraya Govindseth Lubri Vs. Purshottam Narayanseth Dali, ILR (1922) 46 Bom 635 [Para 31]
Jethalal C Thakkar & Ors. Vs. Lalbhai Hiralal Shah, (1984) 86 Bom LR 10 [Para 31]
Lalitabai Vs. Pundlik Dayaram Rangari, 2007(3) ALL MR 690=2007(1) Mh. L.J. 782 [Para 31]

JUDGMENT

JUDGMENT :- A. PARTIES AND THEIR LITIGATIONS

2. Since there are cross-applications and cross-suits, this is how the parties are arrayed before me. One CVK & Associates, a partnership firm of Chartered Accountants ("CVK"), is the sole Plaintiff in Suit No. 1686 of 2006, filed for specific performance and decreed by consent. The 1st Defendant to that suit is one Shreyas alias Ashok Narayan Pathare ("Pathare"). The 2nd Defendant to CVK's 2006 suit is Pathare's sister, and the 3rd Defendant is her husband ("the Shastris"). In its suit, CVK has filed Execution Application (L) No. 141 of 2008. It has filed two Chamber Summonses in that Execution Application. The Sub-Registrar of Assurances ("Sub-Registrar") is the Respondent to CVK's Chamber Summons No. 524 of 2010. The Municipal Corporation of Greater Mumbai ("MCGM") is a Respondent to CVK's Execution Application and its Chamber Summons No. 613 of 2015. Pathare has filed Suit No. 880 of 2010, to which CVK is the sole Defendant. In that suit, CVK has filed Notice of Motion 3734 of 2011 under Order 7, Rule 11 of the Code of Civil Procedure, 1908 ("CPC") seeking a rejection of the plaint. In the course of the narrative that follows, there are references to other proceedings, including suits, contempt petitions, writ petitions, appeals and so on. These two suits, and the three applications in them, are the ones before me. I will refer to them in this order as follows:

(a) Suit No. 1686 of 2006: "CVK's 2006 Suit";

(b) Suit No. 880 of 2010: "Pathare's 2010 Suit";

(c) Execution Application (L) No. 141 of 2008: "CVK's Execution Application";

(d) Chamber Summons No. 524 of 2010: "CVK's 2010 Chamber Summons";

(e) Notice of Motion No. 3734 of 2011: "CVK's O7R11 Motion".

(f ) Chamber Summons No. 613 of 2015: "CVK's 2015 Chamber Summons";

3. In this order, I propose to dispose of only CVK O7R11 Motion. I have taken up CVK's 2010 Chamber Summons and CVK's 2015 Chamber Summons only to pass certain further directions regarding affidavits in each. Neither of those Chamber Summonses are disposed by this order.

4. There is an agreed compilation, and I will be referring to it in the order.

5. Having heard Mr Godbole for CVK and Mr Behramkamdin for Pathare, I am inclined to allow CVK's O7R11 Motion. My reasons follow.

B. FACTUAL BACKGROUND

6. The facts are largely undisputed and, indeed, are common to both Chamber Summonses and the Motion. They run like this. On 4th October 2005, Pathare, a promoter of a realty development, accepted an amount of Rs. 3 lakhs as earnest money from CVK for himself and the other co-owners for the sale of Flat Nos. 101, 102 and 103 in a building known as Shreyas at Mogul Lane, Mahim, Mumbai.

7. On 4th February 2006, a Deed of Partition was executed between the various persons named in that document.1 Pathare is the second party. The agreement clearly allots Flat Nos.101, 102 and 103 to the Shastris. The carpet areas of the flats are noted as being 325 sq ft in respect of Flat No.101 and 992 sq ft for Flat Nos.102 and 103 together, totalling 1,317 sq ft. The plans of the flats showed a carpet area of 1,317 sq.ft.

8. On 16th May 2006, CVK filed Suit No. 1626 of 2006 against Pathare and others for specific performance of the agreement for sale in respect of Flat Nos. 101, 102 and 103, the whole of the first floor.2 Defendants Nos. 2 and 3 entered written statements. They did not deny the agreement. They also did not deny the correctness of the plans. Pathare filed no written statement at all.

9. There followed a Family Arrangement of 30th October 2007 between Pathare, Sushama Pathare (the mother of Shreyas Pathare and Chhaya Shastri), and the Shastris.3

10. On 2nd November 2007, Suit No. 1626 of 2006 was decreed by consent.4 This clearly says that Defendants Nos. 2 and 3 undertook to sell to CVK Flat Nos. 101, 102 and 103 admeasuring 1,317 sq ft carpet area and comprising the entire first floor of the Shreyas building, along with a proportionate undivided interest in the land and facilities. The consideration was Rs. 1.10 crores. The Shastris undertook to distribute the consideration and further to execute the conveyance and register this within 40 days.

11. On 11th December 2007, at Pathare's instance, CVK executed an Affidavit annexing a plan as Annexure "3".5 This showed that Flat Nos. 101, 102 and 103 comprise a single unit on the first floor in the occupation of the Plaintiff. In paragraph 6 of this Affidavit, CVK undertook not to claim any right in any additional FSI. This is one of the two issues that is at the heart of the controversy before me today.

12. On 13th December 2007, a Sale Deed was executed by the Shastris in favour of CVK.6 The other six co-owners, including Pathare, were shown as confirming parties. They did not sign the document.

13. I will pass over certain intervening events and move directly to 4th April 2008 when CVK wrote to Pathare withdrawing its Affidavit of 11th December 2007.7 On 17th April 2008, CVK filed its Execution Application. A few days later, on 23rd April 2008, Pathare filed Suit No. 955 of 2008 in the City Civil Court at Mumbai alleging that CVK had made illegal alterations to these premises. Pathare also made complaints to the MCGM, which then issued notices under Section 354A of the Bombay Municipal Corporation Act 1888 and Section 53 of the Maharashtra Regional Town Planning Act 1966. Pathare also complained to the BES&T undertaking objecting to the transfer of the electric meter to CVK's name. On 20th April 2008, CVK filed Suit No. 984 of 2008 in the City Civil Court at Mumbai challenging a stop-work notice issued by the MCGM.

14. Thus, by this time although CVK was in possession of the three flats, the title documents had not been executed or registered, and there were complaints by Pathare of illegal work being done on the first floor by CVK. On 28th April 2008 Pathare himself filed Execution Application (L) No. 160 of 2008 and filed Chamber Summons No. 654 of 2008 in that execution application claiming that the conveyance did not adequately protect his rights.

15. On 29th April 2008 Smt, Roshan S Dalvi J made an order inter alia recording the agreement to effect certain corrections to the sale deed.8 and these included the mention of the specific rights claimed by Pathare as specified in paragraph 4(b) of the Partition Deed dated 4th February 2006. Pathare agreed to execute the sale deed as a confirming party on addition of a clause specifying his rights in this clause 4(b). That clause reads thus:

"4(b) The Party of the Second Part viz Mr Shreyas alias Ashok Narayan Pathare hereto has been allotted the remaining flats, remaining car parking spaces, terraces and also granted rights for any additional FSI which may be available and the right to utilise the additional FSI in any manner. Any area that has to be surrendered or handed over to MHADA will be handed over by the Party of the Second Part from his share only."

Pathare undertook to the Court to go through and sign the revised/amended sale deed by 6th June 2008.

16. In its City Civil Court suit challenging the stop-work notice, CVK obtained no ad-interim reliefs. It, therefore, filed an appeal and obtained an ad-interim stay from this Court. It then filed Suit No. 1173 of 2008 challenging the notice issued by MCGM under Section 53 of the MRTP Act 1966. As it happens, on 30th June 2008 this Court passed an order in the appeal filed by CVK against refusal of ad-interim reliefs. That order effectively disposed of both of CVK's City Civil Court suits. The order directed the parties to maintain status quo until the MCGM disposed of a representation to be made by CVK in respect of the works alleged to be unauthorized. The Assistant Municipal Commissioner rejected CVK's representation but granted time to CVK to apply for regularization.

17. There is then an order of 4th August 2008 (Smt Roshan S Dalvi J).9 The learned Judge held that in accordance with the Consent Terms filed in CVK's 2006 Suit, CVK was required to be given a consolidated flat with a carpet area of 1,317 sq ft. In paragraph 7 of that order, the learned Judge noted the statement made by Pathare that the combined flat, built in accordance with sanctioned plans, would have a lesser area of 1,191.88 sq ft. The Court then observed that it was not understood why Pathare in the partition deed and later in the Consent Terms accepted the area of 1,317 sq ft as being the combined area of the three flats. The learned Judge noted that the controversy now was how much additional area, if any, CVK had obtained by virtue of the changes it had allegedly made, but clarified that CVK was entitled to a flat of approximately 1,371 sq ft. An architectural firm was appointed to measure the carpet area of the first floor flat. The architect's report that followed a short while later around 23rd September 2008 noted that the area in possession of CVK was 1,264 sq ft, shortfall of about 53 sq ft.

18. In the meantime, the proposals for regularization that CVK submitted all met with failure. CVK filed appeals challenging these rejections. I will leave aside the parallel criminal proceedings that CVK initiated against Pathare and others and come immediately to a crucial order of 2nd/6th July 2009 of Dr DY Chandrachud J (as he then was).10 The order traces the history of the matter in some detail. It was passed in CVK's Execution Application and Pathare's counter execution application. It would be appropriate at this stage to reproduce certain portions of this order for this captures the position as it then stood:

"1. Execution Application 141 of 2008 has been taken out by CVK and Associates who are the decree holders in a suit for specific performance. Execution Application 160 of 2008 has been taken out by the First Defendant to the suit for specific performance. The subject matter of the dispute relates to three residential flats viz. Flat Nos.101, 102 and 103 in a building by the name of Pathare situated on Final Plot No.328 at Mogul Lane, Mahim.

2. In the suit for specific performance Consent Terms were arrived at between the parties on 2nd November, 2007. The First Defendant to the suit is the brother of the Second Defendant. The Third Defendant to the suit is the husband of the Second Defendant. By the Consent Terms it was agreed that the Second and Third Defendants would sell the three flats in question admeasuring a carpet area of 1317 sq. ft. together with a proportionate undivided interest in the land and the common areas and facilities to the Plaintiff for a consideration of Rs.1.10 Crores on an as is where is basis. The First Defendant and the other coowners of the building agreed that they shall be confirming parties to the deed of conveyance. Clauses 1, 2 and 3 of the Consent Terms are material for the purpose of the present proceedings and they provide as follows:

"1. Decree in terms of prayer clauses [A], [B] and [C] to the Plaint, modified to the extent set out herein below:

2. Defendant Nos.2 & 3 hereby undertake to sell Flat Nos. 101, 102 and 103 (total admeasuring 1317 sq. ft. carpet area comprising of the entire first floor) on the first floor of the Pathare Building, Plot No.72, Mogul Lane, Mahim, Mumbai 400 016 along with proportionate undivided interest in the land and in the common areas and facilities of the said building to the Plaintiffs for a value of Rs.1,10,00,000/- (Rupees One Crore Ten Lacs only), on as is where is basis and Defendant Nos. 2 & 3 alone will be entitled to the entire sale proceeds thereof as under:

i) Defendant No.2 will receive a sum of Rs. 88,00,000/- (Eighty Eight Lacs only) in respect of the sale of the flat Nos.102 and 103 (admeasuring 992 sq.ft. Carpet area) being the 80% of the total sales consideration;

ii) Defendant No.3 will receive a sum of Rs. 22,00,000/- (Twenty Two Lacs only) in respect of the sale of the flat No.101, (admeasuring 325 sq. ft. carpet area) being the 20% of the total sales consideration.

3. Defendant No.2 & No.3 undertake to execute the conveyance against payment of the said purchase consideration and register the same within 40 days from the date hereof and hand over peaceful and vacant possession of the said flats to the Plaintiffs only on payment of full consideration. Defendant No.1 and the other coowners of Pathare building will be confirming party to the said conveyance. Defendants 1, 2 & 3 confirms that other coowners are bound and obliged to join as confirming parties to the conveyance. Pending the sale of the said first floor flats, Defendant No.2 & No.3 undertake that they, their family, agents representatives or any person claiming through/under/from them shall not in any manner occupy or utilise the said first floor flats. The keys to the first floor flats will also be kept with Mrs. Sushama Narayan Pathare, the mother of Defendant No.1 and No.2, till completion of the abovementioned sales transaction with the Plaintiffs."

3. At this stage it would be material to note that prior to the execution of the Consent Terms certain family arrangements came to be arrived at between the First, Second and Third Defendants. For the purposes of these proceedings, it would not be necessary for the Court to deal with the detailed terms of each of the family arrangements, save and except to note that these family arrangements were respectively dated 30th March, 2004 and 4th February, 2006. The subsequent arrangement dated 4th February, 2006 would have to be briefly referred to, because one of the terms of that agreement viz. Clause 4(b) has been reiterated as governing the rights and obligations inter se between the decree holder and the First, Second and Third Defendants respectively. The family arrangement (described as an MOU) dated 4th February, 2006 provided that the Second Defendant owned and possessed flat Nos.102 and 103 while the Third Defendant was entitled to flat 101. Clause 4(b) of the MOU provided as follows:

"4(b) The Party of the Second Part viz. Mr. Pathare alias Ashok Narayan Pathare hereto has been allotted the remaining flats, remaining car parking spaces, terraces and also granted rights for any additional FSI which may be available and the right to utilise the additional FSI in any manner. Any area that has to be surrendered or handed over to MHADA will be handed over by the Party of the Second Part from his share only."

4. As between the Defendants inter se Clause 4(b) reiterated the position that save and except for those flats which were referred to in the earlier part of Clause 4, the First Defendant was allotted the remaining flats, remaining car parking spaces, terraces and the right to any additional FSI which may be available.

5. An Execution Application came to be filed by the decree holder for seeking enforcement of the conditions that were spelt out in the Consent Terms. The Execution Application came up on 29th April, 2008 before Smt. Justice Roshan Dalvi when parties agreed to certain specific stipulations which are recorded in paragraph 9 of the order which reads as follows:

"9. The parties agree to the following amendments in the Sale Deed:

(i) Deletion of reference to the earlier M.O.U. Dated 30th March 2004;

(ii) Specifying that the proportionate undivided interest in the suit land, common areas, facilities and car parking space is transferred to the Respondent No.1 along with the 3 flats on the first floor of the suit building.

(iii) Addition of one clause specifying the Applicant's specific rights as mentioned in clause 4(b) of the M.O.U. dated 4th February, 2006. Once that is done the Applicant shall execute the Sale Deed as confirming party."

By clause (iii) of the aforesaid stipulation, the decree holder, though it was not a party to the family arrangement dated 4th February, 2006, agreed to be governed by Clause 4(b) under which, as noted earlier, the rights in respect inter alia of the additional FSI were recognized as vesting in the First Defendant to the suit.

6. The bone of contention between the parties arose out of the utilization allegedly by the decree holder of certain additional FSI by carrying out unauthorized alterations to the flats which were agreed to be purchased. On 29th April, 2008 the Municipal Corporation issued a notice under Section 53(1) of the Maharashtra Regional and Town Planning Act, 1966 to the decree holder which was preceded by a stop work notice under Section 354A of 23rd April, 2008. This action by the Municipal Corporation was necessitated as a result of an amalgamation by the decree holder of the three flats and the carrying out of a significant amount of internal work which, according to the owners, would have the effect of utilizing additional FSI." (Emphasis added)

19. Dr Chandrachud noted that the MCGM found several unauthorized alterations including some that consumed additional FSI. In paragraph 9, he noted the submission by CVK that the Shastris had signed the Consent Terms and that Pathare as a party to those Consent Terms were bound to execute the sale deed. Pathare countered this by saying that CVK could not utilize additional FSI as it had purported to do by making unauthorized alterations or which the effect or consequence of those alterations.

20. Then comes paragraph 11 which is the actual finding returned by the Court and this is how it reads:

"11. Now it will be necessary for the Court to emphasize that as the executing Court this Court and the parties are bound by the terms of the Consent Terms which form the foundation of the decree that was passed on 2nd November, 2007. The Consent Terms spelt out that the Second and Third Defendants were to transfer flats 101, 102 and 103 with a carpet area of 1317 sq. ft. and comprising of the entire first floor along with a proportionate undivided interest in the land and in the common areas and facilities of the building to the decree holder for a value of Rs.1.10 Crores on an as is where is basis. There is no dispute about the fact that the entire consideration has been paid. The First Defendant who has contested the Execution Application filed by the decree holder has accepted the obligation under Clause 3 of the Consent Terms to be a confirming party. That being the position, the First Defendant is duty bound to abide by the obligation cast upon him by Clause 3 of the Consent Terms. The Second and Third Defendants, it may be noted, have signed the sale deed. At the same time, from the material before the Court which has already been referred to earlier, it has emerged that the decree holder has agreed to subject itself to the stipulations contained in Clause 4(b) of the MOU dated 4th February, 2006. During the course of the hearing of these proceedings, the learned senior counsel appearing on behalf of the decree holder has placed on the record a condition, in the following terms, in implementation of Clause 4(b) of the MOU dated 4th February, 2006 to which the decree holder has agreed to subject itself. This would also be in fulfillment of the agreement between the parties which was recorded in the order dated 29th April, 2008 passed by Smt. Justice Roshan Dalvi. The condition which the decree holder has agreed to subject itself to reads as follows:

"As per Clause 4(b) of the MOU dated 4th February, 2006 executed by the coowners of the said Pathare Building, Mr. Ashok Narayan Pathare has been allotted the remaining car parking spaces, terrace and also granted rights for any additional FSI which may be available and the right to utilize the additional FSI in any manner. Further any area that has to be surrendered or handed over to MHADA is to be handed over by Ashok Narayan Pathare from his share only."

It is agreed by the parties that the First Defendant Ashok Narayan Pathare's rights as mentioned in Clause 4(b) of the MOU dated 4th February, 2006 remained unaffected by the said sale deed. In fairness, it must be recorded that counsel appearing on behalf of the First Defendant had, during the course of the submissions, stated before the Court that the First Defendant is ready and willing to execute the sale deed provided the concerns of the First Defendant in regard to the excess utilization of FSI by the decree holder in violation of the provisions contained in Clause 4(b) of the MOU are protected. The aforesaid condition to which the decree holder has agreed will adequately protect the interest of the First Defendant. The decree holder has agreed that it shall not, in the course of the regularization proceedings, claim the benefit of any FSI in violation of Clause 4(b) of the MOU. Before concluding it would be necessary to record that initially, there was some dispute between the parties during the course of these proceedings on whether the decree holder is entitled to the benefit of a car parking space as appurtenant to flats 101, 102 and 103. During the course of the hearing learned senior counsel appearing on behalf of the decree holder stated on instructions that in order to obviate any controversy the decree holder does not wish to press any right in respect of the car parking space." (Emphasis added)

21. What is of immediate consequence for our present purposes is what follows in paragraphs 12 to 14 and 16:

"12. Upon the pronouncement of judgment, an opportunity was granted to the parties, in terms of Order 21 Rule 34 of the Code of Civil Procedure, 1908, to prepare a draft containing the requisite terms for incorporation in the Sale Deed. The Court has been informed by all the Advocates before the Court that parties are desirous of executing an addendum to the Sale Deed incorporating all the necessary terms as agreed. Accordingly, the Advocates have discussed the terms of the proposed addendum between themselves and have tendered before the Court, an agreed draft incorporating all necessary terms and conditions. Shri Pandit, Learned Advocate appearing on behalf of the First Defendant Mr. Ashok Narayan Pathare states that his client undertakes to execute the Sale Deed and the addendum on or before 10th August 2009. In view of the statement which has been made before the Court on instructions, no further directions are necessary or sought.

13. All the parties shall now proceed to execute the Sale Deed and the addendum to the Sale Deed in terms of the draft which has been tendered before the Court and agreed upon.

14. Mr.Pandit, Learned Advocate for the Applicant in Execution Application No.160 of 2008 states that the Execution Application may now be disposed of in terms of the aforesaid directions. The Execution Application shall accordingly stand disposed of.

15. In view of the disposal of the Execution Application, Chamber Summons 654 of 2008 has become infructuous and stands disposed of.

16. In so far as Execution Application (L) No.141 of 2008 is concerned, it has been stated that the First Defendant shall execute the Sale Deed and the addendum thereto in the terms agreed for and on his behalf. Defendant Nos.2 and 3 have also agreed to do so. In view thereof, the Execution Application is on the request of the Advocate for the Applicant, disposed of reserving liberty to the Applicant to take steps in accordance with law in respect of the other coowners." (Emphasis added)

22. The consequence of this is that after Dr Chandrachud J pronounced judgment, a consensus was arrived at; and from paragraphs 12 to 16 an order was taken by consent by which Pathare agreed to execute the sale deed and a proposed addendum, on or before 10th August 2009. The directions in paragraph 13 extracted above were also by consent. In paragraph 16, there was a noting of statement made on behalf of Pathare that he would execute the sale deed and the addendum. His execution application was disposed of reserving liberty to him to take steps in accordance with law in respect of the other co-owners.

23. On 5th August 2009 Pathare did in fact sign the sale deed but only for himself and not in exercise of the Power of Attorney that he held from the other co-owners. On 9th September 2009 CVK called on the co-owners to admit execution on 17th September 2009. None of the Defendants to CVK's 2006 Suit presented themselves before the Sub-Registrar who, thereafter, on 27th November 2009 refused to register the sale deed for want of admission of execution. On 13th January 2010 CVK lodged the addendum along with sale deed for registration since Pathare had not come before the Sub-Registrar.

24. It is after this that, on 8th February 2010, Pathare filed his 2010 suit. In this, Pathare seeks to set aside the sale deed of 13th December 2007 and the addendum dated 5th August 2009 as being vitiated by fraud; for a declaration that these are not binding on him; that the agreement recorded in the order of 2nd/6th July 2009 (Dr DY Chandrachud J) is cancelled; that CVK was not entitled to extend the flats beyond the sanctioned plans; for an order directing CVK to restore the first floor flat to its original position; impeaching the regularization appeal that CVK filed before the State Government; for an injunction restraining CVK from applying for a regularization; and finally for an injunction restraining CVK from using the three first floor flats combined in a second single unit. Pathare also filed Notice of Motion No. 920 of 2010 for interim relief in these terms.

25. On 31st March 2010 CVK filed its 2010 Chamber Summons seeking enforcement of this Court's order to compel Pathare to admit execution.

26. The remaining developments in regard to contempt, writ petition and so on are not immediately material in my view.

27. On 18th November 2013 Pathare unconditionally withdrew his City Civil Court Suit No. 955 of 2008 in which he alleged that CVK had made unauthorized alterations and had sought reliefs in that regard.

28. Then CVK filed its 2015 Chamber Summons. The reliefs here are, prima facie, decidedly ambitious. I will return to this Chamber Summons towards the end of this order.

C. CVK'S 07R11 MOTION

29. This is CVK's Notice of Motion under Order VII Rule 11 the CPC for rejection of the plaint in Pathare's 2010 suit.

30. Mr Godbole for CVK submits that the Notice of Motion must be allowed simply for asking. The Suit is barred by law for, in his submission, a separate suit does not lie and any objection of the nature taken must be taken in execution.

31. Mr Behramkamdin submits that such a Suit is maintainable and that when it comes to setting aside of a decree on the ground of fraud, this is not an objection that can validly be taken in execution. A decree has to be impeached only by way of a separate Suit. Mr Behramkamdin relies on very many authorities, but of this, I will list the judgments of the Supreme Court and of this Court.

Supreme Court:

(1) State of MP v Brijesh Kumar Awasthi; (1997) 4 SCC 472

(2) AA Gopalakrishnan v Cochin Devaswom Board & Ors; 2007(7) SCC 482 : [2007 ALL SCR 2891]

(3) Som Nath Setia v Ravi Setia; Civil Appeal No. 6863 of 2009 arising out of SLP 30142 of 2008; judgment dated 7th October 2009.

(4) Bhau Ram v Janak Singh. (2012) 8 SCC 701 : [2012 ALL SCR 2333].

(5) P.V. Guru Raj Reddy v P. Neeradha Reddy; (2015) 8 SCC 331 : [2015(2) ALL MR 986 (S.C.)].

Bombay High Court:

(6) Fatmabai v Sonbai; 13 BLR 573 (1911).

(7) Ramchandra Govind Thomare v Jayanta; ILR (1921) 45 Bom 503.

(8) Dattatraya Govindseth Lubri v Purshottam Narayanseth Dali; ILR (1922) 46 Bom 635.

(9) Jethalal C Thakkar & Ors v Lalbhai Hiralal Shah; (1984) 86 Bom LR 10.

(10) Lalitabai v Pundlik Dayaram Rangari; 2007(1) Mh.L.J. 782 : [2007(3) ALL MR 690].

32. Before turning to the relevant authorities, it seems to me that what this submission overlooks is the effect of amendment in 1976 to Sections 47, 2(2) and Order 23 of the CPC. Even the decisions that are subsequent to the amendment must be read in context. For instance, I find that the decision that Mr Behramkamdin relies on in the case of Som Nath Setia v Ravi Setia dated 7th October 2009 is of little assistance because in that case a person who claimed to have a power of attorney filed a written statement, but it was later alleged in a subsequent suit that this so-called constituted attorney was an imposter and a charlatan, who had never been authorized by the appellant. This is at a very great distance from what Pathare alleges in the present action. On one thing there can be no doubt: what Pathare seeks to set aside in his 2010 suit is the sale deed, the addendum and also the order of Dr DY Chandrachud J. It is Mr Behramkamdin's case that all of these have been 'obtained by fraud'. What fraud? According to Mr Behramkamdin, the fraud lies in CVK applying for regularization of its alleged unauthorized alterations. According to him, CVK was required to take the premises on the first floor on an as-is-where-is basis, that is to say as constructed according to the sanctioned plans, irrespective of whether these three first floor flats together made up 1,317 sq ft in carpet area or not. It is his submission that the mention of the carpet area of 1,317 sq ft is entirely irrelevant and it makes no difference that this appears in document after document that Pathare signed, or agreed and undertook to sign, including the sale deed that he signed thereafter. Mr Behramkamdin says that since CVK accepted Clause 4(b) of the Partition Deed/MoU, it could not lay claim to any FSI in the building, either directly or indirectly. By seeking regularisation of unauthorised constructions, CVK is at the very least indirectly diminishing the available FSI and which CVK said it would not touch. Therefore, according to Mr Behramkamdin, there is a fraud and this does not just allow a separate suit to be filed, but a separate suit is the only remedy.

33. Mr Behramkamdin is wrong, says Mr Godbole. I agree. Section 47 of the CPC reads thus:

"47. Questions to be determined by the Court executing decree. - (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

(2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court fees.

(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court."

Sub-section 2 was omitted by the 1976 amendment.

34. This is not all. Section 2(2) was also amended by that amendment. A decree is defined now thus:

"2. Definitions. - (2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 47 or section 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default."

The reference to Section 47 has been removed from the definition.

35. Finally there is the amendment of the same year to Order 23 and insertion of Rule 3A.

"Rule 3-A. Bar of suit. - No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. (Emphasis added)

36. Now read together, this tells us in no uncertain terms that when we are dealing with a compromise decree, a separate suit does not lie to set it aside on the ground that it was not lawful. All the authorities that speak of a decree simpliciter being vitiated by fraud are of one class. Compromise decrees are now separately and specifically covered by Order 23, Rule 3-A; but not all compromise decrees are so covered, but only those that are sought to be set aside on the ground that they are not lawful. For such cases, a separate suit is clearly barred.

37. The amendment to the definition of a decree tells us also that a challenge to a compromise decree cannot result in a decree once it is taken as a question for determination under Section 47. Read with the deletion of sub-section 2 of Section 47 - for this can no longer be 'treated as a suit', i.e. a proceeding with a resultant decree - this puts the matter beyond all controversy.

38. Whether or not Pathare has a case to be made for setting aside the compromise decree is not something that I am required to decide. I am only called upon to decide whether this can at all be done in a separate suit such as the one that Pathare filed in 2010.

39. With this, I will now return to the authorities on which Mr Behramkamdin relies, listed above.

(a) Brijesh Kumar Awasthi (1997, SC) was a case of lack of authority to enter into the compromise in the first place. That want of authority had to be established. This is, therefore, no authority for the proposition that a compromise decree such as the one at hand can be challenged in a separate suit. In any case, the decision was concerned with whether an injunction under Order 39 could be sustained, and not the maintainability of a separate suit. That question was not before the Court and no decision was rendered in that regard.

(b) In AA Gopalakrishnan (2007, SC), the question was of a challenge to a compromise decree arrived at by fraud against a statutory authority. The suit there was alleged to be collusive, and the finding was that the bar in Order 23 Rule 3-A does not operate where there is an allegation of fraud or collusion made against a statutory authority which entered into such a compromise through its conniving officers. The submission without reading the latter part of the finding, which qualifies the first, is incorrect; otherwise, it would tantamount to the Supreme Court having read Order 23 Rule 3-A off the statute book altogether. Correctly read, this authority is against Mr Behramkamdin.

(c) I have already considered the order in Setia (2009, SC), and it is not necessary to re-visit it.

(d) Bhau Ram (2012, SC) is not under Order 23 at all, and in fairness Mr Behramkamdin relies on it to say that his 2010 plaint must be 'read as a whole'. That is true, and the proposition is accepted, but the trouble is when it is read as a whole, for it is then squarely hit by the bar in the amended CPC. In fact, the shoe is on the other foot: Mr Behramkamdin's submission actually demands that Pathare's 2010 Suit not be read as a whole, but be dissected into discrete components - "here is my allegation of fraud, and here is my allegation of further fraud", and so on. This is also true of the decision in PV Guru Raj Reddy (2015, SC).

(e) Fatmabai v Sonbai (Bombay, 1911); Ramchandra Govind Thomare (1921, Bombay) and Dattatraya Govindseth Lubri (1922, Bombay), all pre-date the 1976 amendments to the CPC and therefore are no authority for the proposition Mr Behramkamdin canvasses.

(f) The decision in Lalitabai (2007, Bombay) was rendered in a wholly different context. The decree there was not a compromise decree at all. The decision is of no assistance to Mr Behramkamdin, and to apply it to a compromise decree would be to ignore altogether the provisions of the amended CPC.

40. Lentin J's judgment in Jethalal C Thakkar (1983, Bombay) is most instructive. The Respondents urged that a substantive suit was necessary, and that a compromise decree could not be set aside in a Miscellaneous Application transferred from the Court of Small Causes in an eviction action. Lentin J examined the meaning of the expression 'not lawful' in Order 23 Rule 3-A. He said:11

3. At the outset, I shall deal with a preliminary contention urged by Mr. Chagla, the learned Counsel appearing on behalf of the respondent. Mr. Chagla invited me to vacate the orders passed by the Court of Small Causes on the ground that Misc. Application No. 568 of 1980 itself is not maintainable. Relying on Fatmabai v. Sonabai [13 Bom LR 573.], Yusuf I.A. Lalji v. Abdullabhoy Lalji [32 Bom LR 667.] and Yusuf Ismailbhai Abdullabhai Lalji v. Abdullabhai Lalji [34 Bom LR 880.], Mr. Chagla urged that the applicants' remedy was to file a substantive suit for setting aside the consent decree, which they have done in the High Court as also in the Court of Small Causes. On the other hand, supporting the maintainability of Misc. Application No.568 of 1980, Mr. Modi, the learned Counsel appearing on behalf of the applicants, urged that under the amended Rule 3A of order XXIII of the Code of Civil Procedure a substantive suit to set aside a consent decree was not called for and that the proper remedy was the one which the applicants had adopted, namely, filing miscellaneous application No. 568 of 1980, to set aside the consent decree, which was not lawful as it was obtained by fraud and/or misrepresentation practised by the respondent on the applicants. I do not agree with the construction placed by Mr. Modi on Rule 3A. It reads thus:

"No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful."

4. I am not inclined to give to the words "not lawful", the unrestricted connotation which Mr. Modi invites me to do. To my mind, Rule 3A bars a substantive suit not in all imaginable cases but in cases where the compromise was "not lawful", where for instance in passing the consent decree the Court had on the face of it no jurisdiction to do so or where fraud or misrepresentation was perpetrated on the Court (as distinct as in the present case, from fraud, coercion or misrepresentation said to have been perpetrated by one party on the other), or where on the face of it the consent decree suffers from some palpable defect or error which the Court must correct, where for instance it contains a term or clause opposed to law, morality or public policy or where the Court was misled into passing the consent decree, say by reason of lack of authority or limited authority of the consenting advocate or advocates not brought to the Court's notice at the time (as in Basangouda Hanmentgouda v. Churchigirigouda Yogangouda [(1910) 12 Bom LR 223.], relied on by Mr. Modi), and so forth. It is in such context thus illustrated that the words "not lawful" must be construed in reference to a compromise envisaged by Rule 3A and not in each and every case where a party seeks to set aside a compromise on the ground of fraud, coercion or misrepresentation practised upon him by the other party as alleged in the present case. In such a case resort to Rule 3A would be impermissible. I do not see anything in Rule 3A as stultifying the ratio of the decisions relied on by Mr. Chagla. If such had been the intention of the Legislature, nothing could have been simpler than to have enacted that no suit shall be filed to set aside a compromise decree, rather than enacting Rule 3A in the phraseology it has been done. (Emphasis added)

41. What this tells us is that when alleging fraud to set aside a compromise decree, it must be shown that the fraud is not upon the party, but upon the Court that passed the compromise decree. What Pathare alleges is that he has been defrauded because, by claiming regularisation, CVK will effectively escape its solemn undertaking in clause 4(b) of the Partition Deed/MoU. As far as the order of Chandrachud J is concerned, there can be no question of any such fraud on the Court, simply because all these rival contentions were noted and decided, and it was thereafter that the parties reached a compromise. If we put this together, the following principles may be said to emerge:

(a) No separate suit lies to set aside a compromise decree on the ground that it was 'not lawful';

(b) The expression 'not lawful' in Order 23 Rule 3-A speaks not to every conceivable situation, but where, for instance: the Court was facially without jurisdiction; where fraud or misrepresentation were perpetrated on the Court; or where the compromise decree is facially and palpably defective or erroneous and which it must correct (if it contains a term opposed to law, morality or public policy), or where the Court was misled into passing the consent decree for want of sufficient authority. These situations are to be carefully distinguished from those where a party says the compromise decree was obtained by a fraud perpetrated on the party alleging fraud.

42. I am bound by this decision, and I am in most respectful agreement with the whole of it. It seems to me to set out a principle that only stands to reason. Where a court has been defrauded or misled, everything falls into nothingness. If the decree has a palpable error, it must be corrected - doing so is not 'going behind the decree', for no principle demands that a Court should implement something demonstrably wrong. But that error must be palpable, and evident on its face, not something that requires elaborate reasoning. In this background, it is impossible to hold that the Sale Deed, the Addendum and Dr Chandrachud J's order can ever be the subject matter of a separate suit. The Sale Deed and the Addendum are the result of Court orders. Dr Chandrachud J's order has no facial or palpable defect of the kind Lentin J had in mind. There was no fraud played on Dr Chandrachud J's court in any sense of the expression: the rival contentions and obligations were noted, including CVK's obligation to be bound by Clause 4(b) of what is described as the MoU (viz., the Partition Deed).

43. On a plain reading of the plaint in Pathare's 2010 Suit, there is no case made out of a fraud on the Court. Pathare's cause of action is embedded in paragraphs 7 to 11 of the plaint in the 2010 suit. He says, first, that CVK made two statements to Dr Chandrachud J: (a) that an appeal had been filed under Section 47 of the MRTP Act against the rejection of the regularisation proposal, and this is said to be false; and (b) that CVK agreed to be bound by the clause 4(b) of the Partition Deed/MoU and not to claim any FSI benefit in any regularisation proposal. Pathare says he relied on these representations in signing the Sale Deed dated 13th December 2007 and the Addendum dated 5th August 2009. The problem with that is that Pathare signed the Sale Deed in 2007, a good two years before Dr Chandrachud J's order of 2nd/6th July 2009. Only the Addendum of 5th August 2009 followed. In any case, this is not a fraud on the Court. The allegation, taken at its face, is one of a fraud on Pathare. CVK's undertakings to the Court stand. Paragraph 11 then says that on this basis, the Sale Deed and the Addendum are voidable at Pathare's instance - it does not say that Dr Chandrachud J's order is obtained by fraud. It could not be, for it is that order that accepts CVK's undertakings in the first place.

44. What gives up the game is this: if, even today, CVK says it will obtain such regularisation as it needs without affecting Pathare's right to the FSI in the Shreyas building, then Pathare has no quarrel at all. If this be so, there can be no question of the kind of 'fraud' of which Lentin J spoke. That fraud must be fundamental, something that requires an unqualified setting aside of the compromise decree on the basis that it was the Court that was misled and defrauded. The case must be put as an absolute, not a conditional one. There can be no question of saying that if the opposite party even now acts in a certain way, there would then be no fraud. That kind of allegation is of fraud upon the party, not a fraud upon the Court, and a suit seeking to set aside a compromise decree as not lawful because of a fraud alleged to have been played on a party does not lie.

45. In my view, Notice of Motion No. 3734 of 2011 must succeed. It is made absolute in terms of prayer clause (a). The plaint in Suit No. 880 of 2010 is rejected. The suit is thus disposed of. Consequently, Notice of Motion No. 920 of 2010 filed by Pathare in this Suit is also dismissed.

46. In view of this order, I believe it is necessary to grant Pathare liberty to file an appropriate proceeding in the Execution Application. Liberty granted.

47. Mr Behramkamdin is instructed to apply for a stay of this order on CVK's O7R11 Motion. The application is rejected. Apart from anything else I have specifically reserved to Pathare the liberty to file an appropriate application in the Execution Application. I have not decided either the suit or the case propounded by the Pathare on merits at all.

D. CVK'S 2010 AND 2015 CHAMBER SUMMONSES

48. Mr Behramkamdin states that there are issues to agitate in opposition to the Chamber Summons in execution. Two of the prayers in CVK's 2010 Chamber Summons are to compel Pathare to admit execution. I have not heard parties separately on the Chamber Summonses. As I said earlier, in hearing CVK's O7R11 Motion, I was only considering whether a separate suit would lie. But that does not mean that Pathare must be shut out from every forum without a fuller hearing. I have not addressed the merits of Pathare's case at all. All that I have held is that Pathare's 2010 Suit is barred and its plaint is liable to be rejected. The result is that the objection, if any, is to be taken under Section 47 in execution and not by way of a separate suit. Pathare is entitled to be fully heard on the merits of his opposition to the Execution Application. This is the only forum in which he can be so heard on those issues.

49. In CVK's 2010 Chamber Summons, it is true that Affidavits have been filed till the stage of Rejoinder. Nonetheless I believe I must allow Pathare one final opportunity to put in any supplementary or additional material, simply because there have been subsequent events as well. Important among these is the fate of the application for regularisation made by CVK. I am told that after this High Court in a Writ Petition remanded the matter to the Appellate Authority, the Minister, the appeal was heard and the Minister has, in turn, remanded the application for regularisation to the Municipal Authorities for consideration afresh. This is of some significance to what I believe has been the case placed by Pathare all along. What is it that Pathare is saying, after all? His case, at its simplest, is that CVK has made unauthorised alterations, extensions or enclosures to the combined premises on the first floor of the Pathare building beyond what was shown in the sanctioned plans. It is this additional area that CVK now seeks to have regularised. On the one hand, there is the statement by the CVK that there is shortfall in the area and that 1317 sq ft, although clearly promised and assured in various documents was never actually delivered. Does this, on its own, mean that CVK is at liberty to enclose additional areas beyond what was shown in plans duly sanctioned to make up the shortfall? Pathare says the actual alterations and extensions are in excess of the shortfall of 53 sq ft or thereabouts.12 I will leave aside the dispute as to whether the some or all of these alterations were done by CVK or by Pathare and the builders/promoters. That is hardly the issue. Pathare points out that there is unequivocal commitment by CVK, one that finds place in at least two orders (RS Dalvi J dated 29th April 2008 and Dr DY Chandrachud J, dated 2nd/6th July 2009) where CVK agreed to be bound by clause 4(b) of the initial Partition Deed/MoU dated 4th February 2006. The consequence of that clause, which I have set out above, is that CVK has bound itself not to utilise any of the additional FSI in the building. This is a matter that requires examination. I will not decide this issue today without giving Pathare a further opportunity to place the entirety of the case on record. If CVK is able to obtain regularisation without in any way reducing the FSI available in the Shreyas building, that is one thing. If, however, that process of regularisation results in a direct or indirect violation or transgression of the commitment that CVK made to abide by clause 4(b), then different considerations would arise.

50. Thus, on the one hand, we have a contention from Pathare that the area of 1317 sq ft specified as being the area of the three flats combined on the first floor is not sacrosanct. On the other, we have a rival contention from CVK that on account of that shortfall in area, the commitment in clause 4(b) accepted by CVK must be read subject to that obligation to deliver 1317 sq ft. I have merely set out this issue only in order to possibly narrow the controversy for a later decision. Both sides will need to be heard on this aspect of the matter.

51. CVK's 2015 Chamber Summons is for an entirely different set of reliefs. There is a substantial Affidavit in Reply of several hundred pages by the Shastris. There is also a (thankfully more brief ) Affidavit in Reply by Pathare. There does not appear to be yet a Rejoinder. I resist all temptation to comment on the reliefs sought in this Chamber Summons.

52. As in CVK's 2010 Chamber Summons, liberty to Defendants Nos. 1, 2 and 3 to file one further or supplementary Affidavit in Reply in CVK's 2015 Chamber Summons. This is to be done on or before 15th June 2018. Affidavit in Rejoinder, if any, to be filed and served on or before 29th June 2018.

53. In the matter of filing of these additional Affidavits I am making it clear that other than copies of orders, or of representations made to various authorities in regard to regularisation, there are to be no other documents. I am placing this restriction since there is already a considerably amount of material on record.

54. List the Chamber Summonses for hearing and final disposal on 4th July 2018 along with any application that Pathare may file pursuant to the liberty reserved, as noted above.

55. No costs.

1. Compilation, pp. 18 - 33. This is titled as a Partition Deed but seems to have been referred to in the proceedings variously as a Memorandum of Understanding or MoU, and also as a Family Arrangement. I have used the caption or title of the document.

2. Compilation, pp. 34 - 104.

3. Compilation, pp. 122 - 128.

4. Compilations, pp. 129 - 138.

5. Compilation, pp. 139 - 178.

6. Compilation, pp. 179 - 188.

7. Compilation, pp. 207 - 208.

8. Compilation, pp. 259 - 263.

9. Compilation, pp. 292 - 295.

10. Compilation, pp. 314 - 331.

11. Paragraph numbers are from the SCC Online report, 1983 SCC OnLine Bom 232

12. CVK insists that the shortfall is in fact much more than 53 sq ft. Mr Behramkamdin disputes this.

Ordered accordingly.