1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3886 OF 2009 IN SUIT NO. 2802 OF 2005 Anil Hukumchand Bhatia ....Plaintiff Versus Ashokkumar Hukumchand Bhatia & Ors. ....Defendants Mr. A. Mehta a/w. Mr. R. Pandey i/b. Mr. Ashok Kumar Singh, Advocate for the Plaintiff. Mr. Bhavesh Parmar, Advocate for the Opponent. Mr. S. P. Dubey, Advocate for Defendant No.2. Mr. Ashok Singh, Advocate for Defendant No.6. CORAM : R. V. MORE, J. DATE : 26th FEBRUARY, 2010. P.C. : Heard learned Counsel for the respective parties. 2. The notice of motion is taken out by Defendant No.6 for setting aside the Consent Decree dated 28th October, 2009 passed in the above suit and for appointment of Court Receiver in respect of the entire suit property including Flat Nos. 20, 15 and Room no.6(c) situated in the building known as “Ramnaam Mansion’. 2 The brief facts giving rise to the present notice motion are as follows: The Plaintiff filed Suit No. 2802 of 2005 initially against Defendants Nos.1 to 5 for their removal as Trustees of Tarabai Bhatia Family Trust (hereinafter referred to as “said Trust”). Admittedly, the Defendant Nos. 1 to 5 are Trustees of the said Trust. There is no dispute that the Plaintiff and Defendant Nos. 1, 6 and 7 are the Beneficiaries of the said Trust. The property of the Trust consists of entire building by name “Ramnam Mansion” which was formally known as “Anil Chamber” situated near Metro Cinema, Mumbai. There is also no dispute that at the time of filing of the suit, only Room No. 6-C was in possession of the Plaintiff. 3. The Plaintiff filed the notice of motion no. 3705 of 2007for various reliefs including relief for appointment of the Court Receiver and possession of one of the flat in the said Building. During the pendency of the suit, the Flat No.20 which was in possession of Ministry of Defence came to be vacated by the said Ministry. This Court by an Order dated 4th October, 2007 appointed Court Receiver with direction to take physical possession of Flat No.20 in the said Building. The Court Receiver was further directed to put the Plaintiff in possession of the said flat. This notice of motion was finally disposed of by an order dated 23rd November, 2007, whereby an ad-interim relief granted on 4th October, 2007 was confirmed. In paragraph no.4 of this Order, observations are made that the Plaintiff and Defendant Nos. 1 to 5 accepted the right of Defendant No. 6 to stay in Flat No.20 whenever he happens to be in Mumbai. 3 The Defendant No.6 and Defendant No.7 came to be impleaded in the suit by virtue of Order dated 10th November, 2008 passed by this Court in Chamber Summons No. 1327 of 2008 in the above Suit. The Defendant Nos. 6 & 7 came to be impleaded as admittedly they are Beneficiaries of the said Trust. 4. It is the case of Defendant No. 6 that the Plaintiff, Defendant Nos. 1 to 3 and the present Opponent colluded with each other in order to deprive Defendant No.6 of his right and filed Consent Terms. The Consent Terms are filed behind the back of Defendant No.6. Even the name of Defendant No.6 was not shown in the cause title of the Consent Terms. In the Consent Terms, the names of Defendant Nos. 4 & 5 were deleted and no objection was given by Defendant Nos. 1 to 3 to Plaintiff to create tenancy in favour of the opponent in respect of Flat No.20. The Consent Terms further records that the Plaintiff has settled with the Occupant of Flat No.15 i.e. Mrs.Daisy H. Icchaporia by paying her an amount of Rs.14,25,000/- for handing over to the Plaintiff, vacant and peaceful possession of the said Flat No.15 and Defendant Nos. 1 to 3 recorded no objection to allot the said Flat to the Plaintiff. 5. The Defendant Nos. 1 to 3 moved the Vacation Judge of this High Court on 28th October, 2009 and presented the above Consent Terms. The learned Judge recorded the presence of the Plaintiff and Defendant Nos. 1 to 3 and further verified the signatures of the said parties to the Consent Terms, and passed Order in terms of the Consent Terms. 4 6. In the above backdrop, the Defendant No.6 has taken out the present notice of motion for setting aside the Consent Decree and appointment of the Court Receiver in respect of Flat Nos. 20, 15 and Room No.6-C situated in the said Building. The learned Counsel for Defendant No. 6 submitted that admittedly Defendant No.6 is the Beneficiary of the said Trust . His right to reside in Flat No.20 was admitted by both Plaintiff and Defendant Nos. 1 to 5 and by obtaining Consent Decree behind his back, great prejudice is caused to Defendant No.6 and therefore, Defendant No.6 seeks setting aside/revocation of the Consent Decree. 7. The learned Counsel for the Plaintiff, on the contrary, submitted that since the Consent Terms are not touching the rights of Defendant No.6, the Consent Decree was rightly passed and no interference is required. The Defendant Nos. 1 to 5 adopted the submission of the learned Counsel for the Plaintiff. 8. Mr. Parmar, learned Counsel for the Opponent, submitted that he has parted with huge amount of Rs.38,00,000/- to the Plaintiff and the said Trust as well as to the existing Tenant by name Mrs.Daisy H. Icchaporia and thereafter, got the tenancy of Flat No.20. He further submitted that the Opponent has acquired tenancy rights bonafide in good faith for value and therefore, his possession from Flat No. 20 cannot be disturbed. 9. Having heard learned Counsel for the respective parties, I find merit in 5 the notice of motion. There is no dispute that Defendant No.6 is one of the Beneficiaries of the said Trust. His right to reside in Flat No.20 whenever he happens to be in Mumbai, is accepted by Plaintiff and Defendant Nos. 1 to 5, is borne out from the Order dated 23rd November, 2007 passed by this Court in notice of motion no. 3705 of 2007. Thus, it is clear that the Defendant No.6 has interest in the Trust and the Trust property. I have perused the Consent Terms and order passed in terms of Consent Terms both dated 28th October, 2009. Though, the Defendant No.6 is impleaded in suit in pursuant of Order dated 10th November, 2008 in chamber summons no. 1327 of 2008, his name is not shown in the cause title of the Consent Terms. The name of Defendant No.7 is also not shown, thereby giving impression that Plaintiff and Defendant Nos. 1 to 5 are the only parties to the suit. Oral leave was asked for deleting the names of Defendant Nos. 4 & 5, as the Consent Terms were signed by Plaintiff and Defendant Nos. 1 to 3 only. Under the Consent Terms, Defendant Nos. 1 to 3 gave no objection to the Plaintiff to transfer Flat No.20 to the Opponent on tenancy basis and Flat No.15 was allowed to be occupied by the Plaintiff, since he has paid an amount of Rs.14,25,000/- to the tenant of the said flat by name Mrs.Daisy H. Icchaporia. In my considered view, the interest of Defendant No.6 is greatly prejudiced, as Flat No.20 was transferred on tenancy basis to the Opponent by the Plaintiff. The Order in terms of the Consent Terms was obtained without giving notice to the Defendant No.6. In these circumstances, I find the interest of justice will be subserved by setting aside/recalling the order dated 28th October, 2009 passed in terms of Consent Terms. 6 10. So far as the contention of the Opponent that he acquired tenancy rights bonafide and in good faith and for value is concerned I do not find merit in the same. It is not disputed that the Opponent resided in Flat No.17 of the said Building as his parents are the tenant of the said Trust. The Flat Nos. 17 and 20 are situated in the same building. As already stated, the Court Receiver was appointed in respect of Flat No.20 and the Plaintiff was in possession of the said flat as an agent of the Court Receiver. The name of the Opponent appears in the Consent Terms, which suggests that the Plaintiff and Defendants must have negotiated with the Opponent prior to the date of filing of the Consent Terms. Inference can be drawn from the above facts that the Opponent was aware of the litigation pending in this Court between the parties to the Suit. It is also not disputed that the Opponent gave following four cheques to different persons : 1. A cheque for an amount of Rs.10,00,000/- dated 12th November, 2009 to the said Trust. 2. A cheque for an amount of Rs.10,00,000/- dated 12th November, 2009 to the Plaintiff. 3. A cheque for an amount of Rs.10,00,000/- dated 12th November, 2009 to the wife of Plaintiff. 4. A cheque for an amount of Rs. 8 ,00,000/- dated 12th November, 2009 to the then tenant of Flat No.15 – Mrs. Desi Icchapuria. The cheque at serial No.1 was encashed on 16th November, 2009 and cheques at serial nos. 2 & 3 were encashed on 18th November, 2009. The 7 present notice of motion was moved before this Court on 12th November, 2009 for direction to the Office to register the same, as the Registry refused to accept the notice of motion on the ground that Opponent was not a party to the original suit. The notice of this motion was given to the Opponent on 13th November, 2009 and it is not disputed by the Opponent that he received the said notice on 15th November, 2009. The Opponent atleast after the receipt of the notice ought to have stopped payment of cheques at Serial Nos. 1 to 3. In the absence of such action on the part of the Opponent, it is difficult to accept the contention of the Opponent that he has acquired tenancy rights bonafide and in good faith. 11. At this stage, it is worth to mention that Defendant No.6 prior to the passing of Order in terms of Consent Terms had filed chamber summons no. 1661 of 2009 for transposing him as Plaintiff in the aforesaid suit. In this chamber summons, he expressed apprehension that the Plaintiff and Defendant Nos. 1 to 5 are likely to settle dispute behind his back, thereby prejudicing his interest in the Trust and the Trust property. His apprehension, I find, came true, as the Plaintiff and Defendant Nos. 1 to 3 obtained Consent Decree behind the back of Defendant No.6. 12. In the facts and circumstances mentioned above, I am disposing of, the notice of motion by passing the following order: i) The order dated 28th October, 2009 passed by this 8 Court in Suit No. 2802 of 2005 including the Consent Decree as per the Consent Terms between the Plaintiff and Defendant Nos. 1 to 3 is set-aside/recalled and the suit is restored to file. The notice of motion no.2754 of 2008 and chamber summons no. 1661 of 2009 in the above suit also, stands restored. ii) The Court Receiver, High Court, Bombay is re- appointed as a Receiver in respect of Flat No.20 situated on 4th Floor, Flat No.15 situated on 3rd floor and Room No.6-C on the ground floor of Building by name “Ramnam Mansion” with all powers under Order 40 Rule 1 of the Code of Civil Procedure, 1908. iii) The Receiver shall take possession of Flat No.20, Flat No.15 and Room No.6-C and appoint the Opponent, Plaintiff and Defendant Nos. 1 to 3 respectively, as Court Receiver’s agents in respect of the said Flats/Room on usual terms and conditions. The Opponent shall pay an amount of Rs.3,000/- p.m. and the Plaintiff shall pay an amount of Rs.2,000/- p.m. towards royalty to the Court Receiver. 9 iv) Liberty is granted to the Opponent to apply for impleadment as a party Defendant in the above Suit. Sd/- ( R. V. MORE, J. )