1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 10862 OF 2009 AND WRIT PETITION NO. 10863 OF 2009 WP NO. 10862 OF 2009 Jaikiran Baldeo Singh & Others. .. Petitioners ( Org. Plaintiffs ) Vs Zaverchand Govindji Shah. .. Respondent ( Org. Defendant ) -- WP NO. 10863 OF 2009 Jaikiran Baldeo Singh & Others. .. Petitioners ( Org. Plaintiffs ) Vs Mangal Kothari alias Jain. .. Respondent ( Org. Defendant ) -- Shri H.S.S. Murthy i/by Shri A.A. Singh for the Petitioners. Shri Denzil D’Mello for the Respondent. -- CORAM : A.S.OKA, J. DATE : 19TH MARCH, 2010 2 ORAL JUDGMENT : . These two Writ Petitions are taken up together for hearing. The facts of the petitions are more or less identical. Hence, a reference is made to the facts of the case in Writ Petition No.10862 of 2009. The Petitioners are the original Plaintiffs and the Respondent is the Defendant. The Petitioners- landlords filed a suit under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ( hereinafter referred to as the said Act ) against the Respondent in the Court of Small Causes at Mumbai. The said suit was filed for eviction of the Respondent. The Respondent was the tenant of the Petitioners in respect of a room in a chawl. The suit was filed under Section 13(1)(hh) of the said Act. 2. Consent terms were filed in the said suit and a decree was passed in terms of the consent terms. The consent terms record that the Petitioners have obtained a certificate issued by the Tribunal as required by Section 13(3A) and Section 13(3B) of the said Act. The Respondent accepted that the suit premises was required by the Petitioners reasonably and bonafide for the purposes of demolition of the existing building and for erection of a new building. The consent terms record that the plans for construction of a new building have been approved by the Mumbai Municipal Corporation. The Respondent agreed to vacate the suit premises and hand over vacant possession thereof to the Petitioners as soon as the construction of Phase -I of the proposed building was completed and occupation certificate was granted. The consent terms provide that as soon 3 as the occupation certificate in respect of the Phase-I was obtained by the Petitioners, they will inform about the same to the Respondent by a registered letter addressed at the suit premises and a copy of the said letter shall be forwarded to the advocate for the Respondent. The Respondent agreed to vacate within a period of one month from the date of receipt of the said letter. 2. Under the consent terms, the Petitioners allotted Flat No.30 on the 2nd floor of the Phase-II of the proposed new building to the Respondent. A plan of the said flat was annexed to the consent terms. The consent terms record that the construction of the second phase will commence after demolition of the building in which the suit premises was situated. The consent terms further record that the said Flat No.30 shall be transferred to the Respondent on ownership basis. The consideration of Rs. 1,30,000/- was agreed to be paid by the Respondent to the Petitioners as and by way of costs of additional area allotted to the Respondent. The amount was to be paid in installments set out in the consent terms and it was provided that the possession of the Flat No.30 will be given to the Respondent only after a full consideration was paid. Time of 18 months was fixed for completing construction of the IInd phase. The said time was to be computed from the date on which the Petitioners get possession of the suit premises as well as the suit premises subject matter of 6 or 7 other suits filed by the Petitioners against the other tenants. Clause (11) of the consent terms provided that after obtaining occupation certificates in 4 respect of the Flat No.30, the Petitioners will address a letter to the Respondent with a copy thereof to the advocate for the Respondent. Within one month of receipt of the said letter, the Respondent was required to take possession of the said flat on payment of the entire balance consideration. Clause (13) provides that if the Petitioners fail to take possession and to pay balance price within the period provided in the consent terms, he shall forfeit his right to get the said flat. Undertaking of the Petitioners was recorded to place the Respondent in possession of the said Flat No.30. 3. The Petitioner obtained possession of the suit premises from the Respondents and completed the demolition of the building in which the suit premises was situated. The case of the Petitioners is that in the year 1991-92, the Phase-I of construction was completed and construction of the Phase-II has started. According to the case of the Petitioners, though the draft agreement under the Maharashtra Ownership Flats ( Regulation of the promotion of construction, sale, management and transfer ) Act, 1963 ( hereinafter referred to as the said Act of 1963 ) was made available to the Respondent, the same was not executed by the Respondent. 4. A notice was taken out by the Respondent in the suit for execution of the consent decree. The said application was objected by the Petitioners on various grounds. It was contended by the Petitioners that the decree was void and cannot be executed. It was contended that the Respondent had surrendered vacant possession of the suit premises to the 5 Petitioners under the decree and there was no decree passed in favour of the Respondent for delivery of the possession of the said Flat No.30. It was contended that the Trial Court had no jurisdiction to pass a decree for possession under Section 13(1)(hh) of the said Act. It was submitted that the application was barred by limitation. The Trial Court dismissed the application for execution though it was held that the same was within limitation. The learned Trial Judge held that in case of a decree passed under Section 13(1)(hh) of the said Act, the tenancy rights in respect of the suit premises do not come to an end and the right of the tenant is to occupy a tenement in the newly constructed building in view of Section 17A to Section 17C of the said Act. The Trial Court observed that in the present case, there was a surrender of tenancy by the Petitioners. The Trial Court held that there was no decree under Section 13(1)(hh) of the said Act and, therefore, the decree was not executable. In a revision application filed by the Respondent, the appeal bench of the Court of Small Causes interfered and held that the decree was executable and directed the Trial Court to execute a decree as per the law. 5. It must be noted here that this Court had suggested the parties to put an end to the dispute. The learned counsel appearing for the Petitioners on instructions stated that no flat in the new buildings is vacant and third party rights have been created in respect of all the flats. The correctness of the said factual statement is disputed by the learned counsel appearing for the Respondent. However, the parties could not settle the 6 dispute and, therefore, the Petition was taken up for hearing. 6. The learned counsel appearing for the Petitioners submitted that there is no decree passed under Section 13(1)(hh) of the said Act and the consent decree at highest records an agreement for sale of a flat in accordance with the said Act of 1963. He submitted that at highest, the Respondent will have to enforce the agreement incorporated in the consent decree by filing a suit for specific performance. He submitted that the consent decree provides for allotment of Flat No.30 to the Respondent on ownership basis and therefore, the decree cannot be termed as the one under the said Act. He submitted that the decree records a surrender of the suit premises by the Respondent in favour of the Petitioners. He submitted that the decree provides for execution of an agreement under Section 4 of the said Act of 1963 and getting the said agreement registered. He submitted that there is no executable decree under the said Act in respect of Flat No.30. He pointed out that the defaults were committed by the Respondent in payment of installments as provided in the consent terms and, therefore, no interference is called for in writ jurisdiction. He submitted that the execution was barred by limitation. The learned counsel appearing for the Respondents supported the impugned judgment and order. 7. I have given careful consideration to the submissions. In the consent terms, it is provided that the Respondent has accepted the ground 7 of bonafide requirement pleaded by the Petitioners for immediate demolition of the building in which the suit premises was situated and for erection of a new building. Clause (4)of the consent terms clearly record that the Petitioners have obtained certificates issued by the Tribunal under Section 13(3A) and Section 13(3B) of the said Act. It also records that all the requirements and undertakings as required under Section 13(3A) of the said Act have been fulfilled by the Petitioners. Clauses 2 to 4 of the consent terms clearly indicate that a consent decree was passed under Section 13(1)(hh) of the said Act. Clause (9) of the consent terms provides that in lieu of the suit premises, the Petitioners shall allot Flat No.30 on the 2nd floor of the newly constructed building in the proposed Phase-II in lieu of the suit premises. The relevant part of the Clause (9) of the consent terms reads thus:- “9. It is agreed between the parties that in lieu of the suit premises, the defendant has been allotted Flat No.30 on 2nd floor of the proposed new building to be constructed during the second phase, as per plan annexed hereto and bounded by red colour. The construction of the second Phase shall be commenced after the demolition of the suit premises.” 8. Further part of the Clause (9) provides that for the additional area and for converting the premises into ownership basis, consideration of Rs.1,30,000/- will be payable by the Respondent. The decree is passed under Section 13(1)(hh) of the said Act and therefore, there is no surrender of tenancy but on the contrary, it is provided that in lieu of the suit premises, the Respondent will be allotted the said Flat No.30. Under 8 Section 28 of the said Act, a suit between a landlord and a tenant or between a tenant and his landlord relating to possession of the premises let out is maintainable and the Court exercising jurisdiction under Section 28 of the said Act gets jurisdiction to pass a decree relating to possession of the premises. As stated earlier, the Clause (9) provides that in lieu of the suit premises, Flat No.30 will be allotted by the Petitioners to the Respondent. That part of the consent decree which provides that the tenancy in respect of Flat No.30 will be converted into ownership may not be an executable in view of the scope of a suit under Section 28 of the said Act but the decree for possession of Flat No.30 is certainly executable in as much as there is no surrender of tenancy in respect of the suit premises and that in lieu of the suit premises, the Petitioners agreed to allot the suit flat No.30 to the Respondent. The Trial Court proceeded on factually erroneous footing that there is a surrender of tenancy in respect of the suit premises. The Trial Court ignored that the Clauses 1 to 8 and the first part of the Clause (9), which is quoted above, clearly show that the decree was passed under Section 13(1)(hh) of the said Act. The Respondent is entitled to claim tenancy rights in respect of the flat agreed to be allotted in lieu of the suit premises. Moreover, there was a decree for possession passed in respect of the said flat no.30 in favour of the Respondent as the said flat was allotted to the Respondent as the tenant in lieu of the suit premises. The Appeal Bench of the Court of Small Causes was right in holding that the decree was executable. 9 9. As of today, it cannot be said that the execution application has not been filed within a period of 12 years as provided in Article 136 of the Limitation Act, 1963. What was the date on which the Petitioners were under the obligation to put the Respondents in possession of the Flat No.30 is a matter to be determined by the Court executing the decree. As of today, it cannot be said that the execution of the decree is barred by limitation. 10. There are undertakings of the Petitioners recorded in the consent terms. The Petitioners obtained possession of the suit premises on the basis of the consent decree and undertakings. Apart from the execution application, the remedy of the Respondent to proceed against the Petitioners for committing breach of the undertakings is always open. The Petitioners- landlords have taken advantage of the consent decree and undertakings incorporated therein by obtaining possession of the suit premises and by constructing new buildings after demolition of the building in which the suit premises is situated. The Appeal Bench of the Court of Small Causes was justified in taking a view that the decree was certainly executable. 11. Subject to what is observed above, no case for interference is made out. The Writ Petitions are rejected. (A.S.OKA, J)