1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3114 OF 2008 Saumil Patel. ..Petitioner. V/s. Vanning Augustin Alves & Ors. ..Respondents. Mr.V.V.Khemka for petitioner. Mr.Clive D’Souza for Respondent No.8(b) & 8(d). Mr.R. Fernandes for Respondent Nos. 2,3,4,6,7,8(a), 9(a) to 9(c). Mr.A.T.Q.Motiwala for Respondent Nos.1,10,11 & 14. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : JULY 21, 2008. DATE : JULY 21, 2008. DATE : JULY 21, 2008. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Rule. Mr.Motiwalla waives notice for Respondent Nos. 1,8,10, 11 and 14. Mr.Fernandes waives notice for Respondent Nos. 2,3,4, 6, 7, 8(a), 9(a) to 9(c). Mr.D’Souza waives notice for Respondent Nos. 8(b) and 8(d). It is agreed that the Respondents who are represented by the Counsel are the only contesting Respondents for the purpose of considering correctness of the Judgment and Order impugned in this Petition. Accordingly, Rule made returnable forthwith by consent. 2 3. This Writ Petition takes exception to the Judgment and Order dated 25th April, 2008 passed by the trial Court, which reads thus: 25/04/08 Coram:-H.H.The 4th Ad-hoc Asst. Sessions Judge Shri A.N. Choure(Court Room No.8) Suit No.7350/88 Matter pertains to C.R.No.1 (Vacant Court) Ld.Adv. Smt.Tanuja Patil for Plaintiff present. Ld.Adv. Mr.Ashwin Bhalekar with Ld.Adv. Mr.Hegde for Contd. defendant No.15 present. Suit No.7350/88 Ld.Adv. Mr.Fernandes for deft.Nos.1 to 3, 5,6,7-a, 8, 8-b and 8-d present. Heard both sides Ld.Advs. The Ld.Adv. For Plaintiff has supported to the contention of Deft.No.15 which is opposed by Ld.Adv.Mr.Fernandes for the aforesaid defts. I have considered the arguments and the citations 1999 AIR, 867 (SC), Dorab v/s. Coomi submitted by Ld.Adv. Mr.Fernandes for the aforesaid defts. I have also considered citation 2007(3) Mh.L.J.at page No.56 submitted by Ld.Adv.Mr.Ashwin Bhalekar for deft. 15. The short point involved in a notice of motion is to stay the auction of the suit property which is being done 3 as agreed by all the parties and as per preliminary decree passed herein by my Ld. Predecessor today auction is being carried out by the Commissioner and once the process of auction is started, he should not be interfered with and therefore, the prayer clauses for restraining the auction as per the prayer clauses in the Notice of Motion could not be allowed, stands rejected. N/M No.219/08 dismissed and disposed off. 4. The said Order is passed on Notice of Motion No. 219 of 2008 whereby following reliefs were claimed by the Petitioner. "(a) That this Hon’ble Court be pleased to recall and /or modify the orders dated 20th February, 2001 passed in the above suit and order dated 20th February 2004 passed in Notice of Motion No.1088 of 2002. (b) This Hon’ble Court be pleased to direct the Court Commissioner to divide the suit property viz. House No.35, Pali Hill, Bandra(W), Mumbai - 400 050; and structure thereon in the proportion of 5/9 and 4/9 and direct the Court Commissioner to auction only 4/9 portion of the suit property and structure thereon. (c) This Hon’ble Court be pleased to direct the Commissioner to allot 5/9 portion of the suit property to the share of Plaintiff and Defendant Nos. 9, 10, 11(a), 11(b) and 13(a) to 13(d) being the portion marked in green in the plan annexed as Exhibit "J" to the affidavit in support of 4 this Notice of Motion. (d) That pending the hearing and final disposal of the Notice of Motion, the Commissioner for taking accounts, High Court, Bombay, be restrained by an order and injunction of this Hon’ble Court from taking forcible possession of the said House No.35, Pali Hill, Bandra (W), Mumbai-50 presently occupied by the Defendant No.15 or doing any act by which exclusion possession of the Defendant No.15 of the said house may be disturbed. (e) That pending the hearing and final disposal of the Notice of Motion, the Commissioner for taking accounts be restrained from executing the programme for sale of the suit property viz. House No.35, situated at Pali Village, Bandra(West), Mumbai-50 including publishing notice in news papers. (f) That pending the hearing and final disposal of this Notice of Motion the Court Commissioner be restrained from auctioning the suit property. (g) Ad-interim relief in terms of prayer (d) to (f). (h) For such further and other reliefs as the nature and circumstances of the case may require. (i) For costs." 5. During the pendency of this Petition, Commissioner for Taking Account proceeded with the publication of sale notice and invited offers from the interested parties. Mr.Nandlal Mathreja responded to the said public notice and gave his offer in respect of the suit property at Rs.1.28 Crores. It appears that he is the highest bidder. 5 He subsequently deposited sum of Rs.32 Lakhs on 28th April, 2008 being part consideration towards the sale proceeds. It is not necessary to enter into controversy whether such payment is in conformity with the terms and conditions of sale. Suffice it to observe that during pendency of this Petition, the contesting parties have arrived at amicable settlement. According to them, in view of the settlement arrived, it is not necessary to proceed with the sale of the suit property. Consent Minutes of the Order have been handed in by the Counsel for the contesting parties. In view of the arrangement arrived at between the parties to the suit, which is articulated in the Minutes of the Order, this Writ Petition could have been disposed of in terms of the said Minutes of the Order. 6. However, Counsel for the third party Mr. Nandlal Mathreja submits that he has acquired interest due to steps taken for sale of the suit property and having invested sum of Rs.32 Lakhs by giving highest offer. It is well established position that merely participating in the auction sale or depositing part consideration amount does not create any vested right in favour of the offerer. It is only upon acceptance of the offer and confirmation 6 of sale by the Court, the offerer would become auction purchaser. It is only thereafter, the auction purchaser can be said to have acquired vested right in the matter of sale of the suit property. In the present case, admittedly the Court below has still not confirmed the auction sale. In fact, the relief claimed by the Petitioner in the Notice of Motion was to recall the process of auction sale. The Court below has dismissed the Notice of Motion on consideration, which in my opinion, is not germane to the point in issue. 7. Be that as it may, having regard to the fact situation of the present case and in view of the arrangement arrived at between the parties to the suit, the appropriate course, to my mind, is to set aside the impugned Judgment and Order and instead restore the Notice of Motion No.219 of 2008 to the file of the Lower Court, for being reconsidered on its own merits in accordance with the law, keeping in mind the new development which may not warrant sale of the suit property at all. The Court below may consider of accepting settlement terms arrived at between parties to the Suit and pass appropriate orders, as may be advised, including for refund of deposit amount paid by Mr.Nandlal Mathreja towards 7 the part-consideration in relation to the offer given by him in response to the public notice for auction sale. 8. Petition disposed of on the above terms. Notice of Motion be decided as expeditiously as possible preferably by end of September, 2008. The parties shall appear before the trial Court on 7th August, 2008 when the trial Court may proceed with the hearing of the Notice of Motion or list it on convenient date to ensure that the same is finally disposed of before 30th September, 2008. 9. Report submitted by the Commissioner for Taking Account be placed before the trial Court to be considered at the appropriate stage. 10. It is once again made clear that if the parties intend to suggest some modification in the consent terms, that aspect is left open and appropriate orders be passed by the trial Court after being satisfied about the acceptance of the consent terms by all the contesting parties. 11. The amount which is deposited in this Court by the Petitioner shall stand transferred to the 8 trial Court. The parties may apply for appropriate direction in relation to the said amount, if so advised. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)