1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.953 OF 2008 IN EXECUTION APPLICATION NO.163 OF 2007 IN SUIT NO. 3811 OF 1994 Mr. Deepak Rajendra Jain and anr. ...... Plaintiffs. V/s Nilan Harishchandra Muranjan and others. ....... Defendants. ----- Mr. Shailesh Shah for the plaintiffs/applicants. Mr. K.B. Nambiar for defendant Nos. 1 to 5. Mr. A.M. Talreja for defendant No.6. ------ CORAM: V.M. KANADE, J. DATE : 5th SEPTEMBER, 2008 P.C.: 1. Heard the learned Counsel appearing on behalf of the plaintiffs and the learned Counsel appearing on behalf of the defendants. 2. This Chamber Summons is taken out by the plaintiffs, seeking the following reliefs :- 2 “(a) That the Hon' ble Court may be pleased to quash and/or set aside the warrant of possession under Order 21 Rules 35 and 36 of the Code of Civil Procedure, 1908, dated the 2nd day of June, 2008, issued against the Plaintiffs at the instance of Defendant Nos. 1 to 5 in the above Suit and the Sheriff of Bombay be directed not to take physical possession or attach and/or seal the gala/shop purported to have been mentioned in the said warrant of possession. (b) Pending the hearing and final disposal of the present Chamber Summons, the Hon'ble Court may be pleased to stay the execution of the said warrant of possession under Order 21 Rules 35 and 36 of the Code of Civil Procedure, 1908, dated the 2nd day of June, 2008, issued against the Plaintiffs at the instance of Defendant Nos. 1 to 5 in the above Suit and the Sheriff of Bombay be directed not to take physical possession or attach and/or seal the gala/shop mentioned in the said warrant of possession. (c ) For ad-interim reliefs in terms of prayers (a) and (b) hereinabove. (d) Cost of the Chamber Summons be provided for. 3 (f) For such further and other reliefs as the nature and the circumstances of the case may be required.” 3. Brief facts in a nutshell are as under:- 4. Plaintiffs have filed the suit for specific performance of the agreement of sale. Parties have arrived at settlement and, accordingly, initially, the consent terms were filed on 21/9/1994. In the said consent terms, plaintiffs agreed to give an area of 2550 sq.ft to defendant Nos. 7 to 9 and also to pay an amount of Rs 1,06,00,000/-. Plaintiffs paid the said amount. However, the said area of 2550 sq.ft was not handed over, since the building was not constructed by that time. Thereafter, the second consent terms were filed on 20/3/1998 and a decree was passed in terms of the said consent terms. In these consent terms, an agreement dated 21/9/1994 was confirmed by the parties and it was further agreed that defendant Nos. 7 to 9 would, after they receive an area of 2550 sq. ft from Plaintiffs, hand over an area of 1200 sq.ft to defendant Nos. 1 to 5. 4 5. The learned Counsel appearing on behalf of the plaintiffs submits that defendant Nos. 1 to 5 have now taken out warrant of possession against the plaintiffs, seeking an area of 1200 sq.ft. He submitted that after the consent terms were filed on 20/3/1998, parties inter se had agreed that the plaintiffs would be permitted to construct the residential building and, in the said residential building, certain galas would also be constructed. He submitted that it was agreed that the defendants would be given residential premises of the same area and that they would not claim industrial galas as agreed. He invited my attention to the correspondence between the parties. He submitted that once having agreed to accept the residential area, it was not open for the defendants to claim industrial gala from the plaintiffs. He secondly submitted that defendant Nos. 1 to 5 should not claim possession from the plaintiffs since in clause 13 of the consent terms dated 20/03/1998, it was specifically agreed that defendant Nos. 7 to 9 would hand over possession of 1200 sq.ft to defendant Nos. 1 to 5. He thirdly submitted that the galas are not identified and, therefore, possession of these galas could not be taken. Fourthly, he submitted that the plaintiffs had already 5 created third party rights in respect of the said galas and, therefore, possession of these galas could not be taken in execution of the decree which was passed in terms of the consent terms dated 20/3/1998. 6. The said submissions made by the learned Counsel appearing on behalf of the plaintiffs cannot be accepted. Firstly, though there was some correspondence between the parties as is reflected from the affidavit-in-support filed by the plaintiffs to the Chamber Summons, the said correspondence cannot override the decree which was passed by the Court in terms of the consent terms dated 20/3/1998. Plaintiffs should have applied for modification of the decree. Plaintiffs, not having chosen to take any steps in that direction, cannot now claim that there was a modification in terms of the agreement between the parties. Secondly, the objection that defendant Nos. 1 to 5 could seek possession only from defendant Nos. 7 to 9 and not from the plaintiffs, also cannot be accepted. Perusal of the consent terms and the decree passed in terms of the consent terms clearly indicates that the primary obligation was cast on the plaintiffs to 6 hand over an area of 2550 sq.ft to defendant Nos. 7 to 9 and, thereafter, defendant Nos. 7 to 9 would hand over the area of 1200 sq. ft. Therefore, primary responsibility was on the plaintiffs to hand over the said area of 1200 sq.ft to defendant Nos. 1 to 5, though, it might have been said in clause 13 that defendant Nos. 7 to 9 would hand over possession. Therefore, this submission cannot be accepted. The third submission that the galas are not identified and that the third party rights have been created and, therefore, the warrant of possession should not be executed also cannot be accepted. If third party rights are created in respect of the said galas then obstructionist proceedings will have to be initiated by the defendants against the obstructionists and that cannot be a ground for granting stay to the warrant of possession. It must be noted here that even when the matter was called out, defendant Nos. 1 to 5 had made a proposal to the plaintiffs that they are willing to accept 500 sq.ft gala on the ground floor and 700 sq.ft flat on the first floor. However, this proposal was not accepted. Plaintiffs are builders. They took possession of the land owned by the defendants, paid a paltry amount of Rs 1,06,00,000/- and constructed residential 7 premises and galas though it was not specifically agreed under the said consent terms. After having earned huge profits, plaintiffs are now depriving the owners of their rightful claim which has been fructified in the consent decree which was passed by the Court. For all these reasons, no case is made out for stay of the warrant of possession. Chamber Summons is dismissed. (V.M. KANADE, J.) 8