1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.3971 OF 2008 IN FIRST APPEAL NO.58 OF 2008 Mr.Dhansuklal Amritlal Parekh & ors. : Applicants. Versus Godrej Boyce Manufacturing Co. Pvt. Ltd. and others. : Respondents. Mr.Janak Dwarkadas, Sr.Counsel with Huzefa Ahmadi with Mr.Pankaj Savant with Mr.Pradip Kapadia with Mr.Prasanna Tare and Kamlesh Rajwani i/by Vigil Juris for the Applicants/Appellants. Mr.Aspy Chinoy, Sr.Counsel with Mr.N.G.Thakkar, Sr.Counsel with Mr.Zal T.A. I/by M/s.Bachubhai Munim & Co. for the Respondent Nos.1 to 7. CORAM : R.M.SAVANT, J. Order Reserved on :- 26th August 2008 Order Pronounced on :- 28th August 2008 P.C. 1. At the outset Shri.Janak Dwarkadas, the learned Senior Counsel for the Applicants seeks leave to amend the prayer clause of the above Civil Application so as to incorporate prayer clause B-1. Shri 2 Aspy Chinoy, the learned Senior Counsel for the Respondent Nos.1 to 7, has no objection for the same. Hence leave granted. Amendment to be carried out within ten days from date. 2. By the above Civil Application, the Applicants, who are the original Appellants in the above First Appeal, inter-alia seek the following reliefs :- (a) to condone the delay, if any, in filing this Civil Application; (b) to permit the Applicants/Appellants to withdraw the First Appeal (First Appeal No.56 of 2008) with liberty to file a Review Application in the Bombay City Civil Court; (b-1) that this Hon'ble Court be pleased to cancel/annul the Order dated 18th January 2008 passed by this Hon'ble Court admitting the First Appeal (First Appeal No.56 of 2008; 3 (c) to relieve/release the Applicants/Appellants from the statement made on their behalf, namely, that the Applicants would file a Suit for specific performance within a period of four months, as recorded by this Hon'ble Court in the order dated 28.3.2008 passed in Civil Application No.6671 of 2007 in First Appeal No.56 of 2008. 3. The above First Appeal has been directed against the Judgment and Decree dated 3rd November 2007. The Appeal has been admitted on 18th January 2008. The Cross Appeal filed by the Respondents above named, who are the Defendants to the said Suit, has also been admitted. The Applicants above named had filed Civil Application No.6671 of 2007 in the above First Appeal for interim reliefs viz. an injunction in respect of the suit property pending the above First Appeal. The Respondents had also filed an Application being Civil Application No.936 of 2008 in their First Appeal for the stay of the Judgment and Decree dated 3rd November 2007. Both the Civil 4 Applications came up for hearing before the learned Single Judge of this Court on 28th March 2008. The learned Single Judge, after hearing the counsel for the respective parties and, on the basis of statement made by the learned senior counsel appearing for the Applicants above named that a suit for specific performance would be filed by the Applicants within four months of the said order, granted injunction in the same terms as was prevailing in the trial Court during pendency of the suit. The said injunction is to operate till 29th August 2008 in terms of the said order. 4. In view of the order passed in said Civil Application No.6671 of 2007, the Learned Single Judge deferred the hearing of the Civil Application filed by the Respondents above named being Civil Application No.936 of 2008 until 29th August 2008. 5. In so far as relief in terms of prayer clauses (b) and (b-1) are concerned, it is the case of the Applicants that since injunction granted by the trial Court in the final order and decree does not restrain the 5 Respondents above named from developing the suit property and since no findings have been recorded in the body of the Judgment of the trial Court as to why the said relief was rejected and since the said injunction was operating, pending the said suit, there is an error apparent on the face of record for which they seek to file a Review Application by withdrawing the above First Appeal. 6. In so far as prayer clause (c) is concerned, the justification for the same has been given in Paragraph Nos.6, 7, 8 and 9 of the above Civil Application. The sum and substance of the case of the Applicants is that on seeking legal advice and thereafter on re- consideration of their position in law, the Applicants have come to a conclusion that filing of a suit for a specific performance would be diametrically opposite their case in the said suit and the findings recorded in the Judgment and Decree dated 3-11-2007. The Applicants have sought to give an explanation for the delay in filing the above Civil Application by stating that time was lost in seeking the said legal advice and only after reconsidering their position as per the legal 6 advice that the above Civil Application has been filed. 7. The Respondents herein, i.e. the original Respondents to the Appeal, have filed their affidavit-in-reply to the above Civil Application, they have opposed the above Civil Application principally on three grounds viz. that the application filed is not bonafide and has been filed to wriggle out of the solemn statement made by them to this Court on the basis of which statement this Court had granted interim injunction to the Applicants which was the injunction operating during pendency of the suit. Further objection is that grant of relief in terms of prayer clause (c) would amount to an admission in favour of the Respondents namely that the Applicants could and would file a suit for specific performance being taken away and; lastly that the Applicants are now estopped from contending contrary to the statement that they have made before this Court. 8. To the said affidavit-in-reply the Applicants have filed an affidavit-in-rejoinder wherein the averments mentioned in the affidavit- in-reply have been sought to be dealt with. A reference to the said 7 affidavit-in-reply and the affidavit-in-rejoinder would be made at the appropriate place in this order. 9. I have heard Shri Janak Dwarkadas, the learned Senior Counsel for the Applicants and Shri Aspy Chinoy, the learned Senior Counsel for the Respondents. Shri Dwarkadas, the learned senior counsel for the Applicants, submitted that the case of the Respondents that only after deriving benefit of the injunction for a period of four months and thereafter at the fag end of the said period that the above application has been filed and therefore the said application was lacking in bonafides cannot be accepted. The learned senior counsel for the Applicants drew my attention to Paragraphs 6, 7, 8 and 9 of the application wherein the explanation for delay in filing the application has been sought to be given and relying upon the said paragraphs he submitted that only after obtaining legal advice in the process of which some time was spent that the instant application was filed. The learned senior counsel for the Applicants submitted that in the said circumstances, the application as filed could not be said to be lacking 8 in bonafides. He further submitted that the said statement as recorded in the order dated 28th March 2008 has been made on a mistaken interpretation of the legal position and only after having reconsidered the legal position that the relief in terms of prayer clause (c) is sought for. The learned senior counsel for the Applicants drew my attention to the findings recorded by the trial Court in the impugned judgment as regards filing of a suit for specific performance. He further submitted that admission if any which arises out of the said statement is one relating to a question of law and not fact and, therefore, the Applicants would not be bound by the statement made by the learned senior counsel who had appeared for the Applicants in the said Civil Application. In support of his said submissions Shri Dwarkadas, the learned senior counsel for the Applicants, relied upon the following Judgements :- 1] AIR 1963 SC 1165 in the matter of Banarasi Das v/s. Kanshi Ram & ors. 2] (2202) 3 SCC 39 in the matter of Swami Krishnanand Govindanand v/s. M.D.Oswal Hosiery (Regd.) and 3] 2001 (5) SCC 60 Central Council for Research in Ayurveda & Siddha and anr. 9 V/s. Dr.K.Santhakumari. 10. The learned senior counsel for the Applicants, submitted that the plea of estoppel would not apply in the facts and circumstances of the present case. He submitted that the Respondents herein have not pointed out as to how on account of the statement made on behalf of the Applicants herein, they have changed their position to their detriment. In support of this submission Shri Dwarkadas relied upon the following Judgments; 1] (1957) 2 All England Reporter 343 in the matter of Kelsen v. Imperial Tobacco Co. (of Great Britain and Ireland), Ltd.; 2] (1949) 1 King's Bench Division 35 in the matter of Territorial and Auxiliary Forces Association of the County of London v. Nichols 3] AIR 1965 SC 1812 in the matter of R.S.Maddanappa v. Chandramma and anr. 4] AIR 1955 SC 62 in the matter of Kalidas Dhanjibhai v. The State of Bombay. Shri Dwarkadas also relied upon the five requirements to sustain the plea of estoppel as mentioned in Phipson's Law of Evidence, 16th Edition and contended that case of estoppel was not 10 made out by the Respondents. 11. In so far as prayer clauses (b) and (b-1) of the above Civil Application is concerned, which is for filing a Review Application before the Bombay City Civil Court, Shri Dwarkadas, the learned senior counsel for the Applicants, submitted that since there is an error apparent on the basis of the record inasmuch as in the final order/decree of the trial Court dated 3rd November 2007, the injunction has been granted by omitting the word “developing” from the said order/decree though there is no finding recorded in the body of the judgment. As regards maintainability of the said Review Application in the context of the above Appeal having been admitted and the orders passed therein, the learned senior counsel for the Applicants submitted that since the Appeal has been admitted, a Review Application would lie if this Court allows withdrawal of the Appeal by annulling the order of admission. In support of his said submission, the learned senior counsel for the Applicants relied upon the following Judgements; 1] 1906 ACJ 842 in the matter of Ramappa Dareppa v/s. Bharma 11 Rama and 2] 1906 The Indian Law Reporters 625 (Volume XXX) in the matter of Ramappa Bin Dareppa and anr. V/s. Bharma Bin Rama. The learned senior counsel for the Applicants further submitted that no prejudice is likely to be caused to the Respondents, if the Applicants are allowed to be relieved/released from the said statement which was made on their behalf and recorded in the order dated 28th March 2008, as the injunction in favour of the Applicants herein was operating right from the year 1988 i.e. during pendency of the suit. Shri Dwarkadas, the learned senior counsel for the Applicants, lastly submitted that in the teeth of Applicants' case in the said suit and the finding recorded a grave prejudice would be caused to the Applicants if the reliefs sought for in terms of prayer clauses (b) and (c) are not granted to them. 12. Per contra, Shri Aspy Chinoy, the learned senior counsel for the Respondents, submitted that the above Application filed on 24th July 2008 lacks in bonafides. He further submitted that this Court, while hearing the said Civil Application No.6661 of 2007 for stay, was not inclined to grant any interim relief, however, it is only on the basis 12 of the statement made by the senior counsel appearing for the Applicants in the said matter, that the said interim relief was granted and which is to operate till 29th August 2008. The learned senior counsel submitted that it is only after deriving the benefit of the said order dated 28th March 2008 for a period of four months that the instant Application has been filed. The learned senior counsel for the Respondents, therefore, submitted that the admission which is inherent in the statement made by the learned counsel for the Applicants and which is recorded in the said order dated 28th March 2008 is one relating to a question of fact as it is on the basis of the pleadings and especially the affidavit-in-rejoinder filed in the said Civil Application by the Applicants that the said statement was made. 13. In so far as the judgments cited on behalf of the Applicants are concerned, Shri Aspy Chinoy, the learned senior counsel for the Respondents, submitted that there can be no quarrel with the propositions laid down in the said judgments that the admission relating to a question of law made by a counsel would not be binding on a party. However, according to him, in the instant case, the said 13 propositions are not applicable as the admission is one relating to a question of fact. 14. In so far as estoppel is concerned, the learned senior counsel for the Respondents submitted that having obtained injunction on the basis of the statement made and also on the basis of which statement hearing of the Civil Application for stay filed by the Respondents in their Appeal has been deferred, the Applicants are now estopped from being resiling from the said statement. 15. In so far as prayer clauses (b) and (b-1) are concerned, the learned senior counsel submitted that a Review Application is not maintainable in view of the fact that the above Appeal as well as the Appeal filed by the Respondents have already been admitted and interim orders have also been passed therein. The learned senior counsel for the Respondents, in support of his said submission, relied upon the judgment of the Privy Council reported in 1923 Indian Appeal 183 in the matter of Indrajit Pratap Sahi v/s Amar Singh. Relying upon the Order 47 Rule 2 of the Code of Civil Procedure, the 14 learned senior counsel for the Respondents submitted that in respect of their grievance against the decree, the above Appeal filed by the Applicants is a proper remedy. 16. I have heard the learned senior counsel for both the parties and have bestowed my anxious consideration to the submissions made them. In the context of the submissions made Shri Chinoy, the learned senior counsel for the Applicants, that the statement made by the learned senior counsel in the said Civil Application NO.6661 of 2007 was a well considered statement having its basis in the pleadings of the Applicants in the said Civil Application. It would be relevant to refer to the pleadings in the said Civil Application No.6661 of 2007. In the affidavit-in-reply filed by the Respondents, it has been averred in para 6(d) as follows :- “As has been set out in the First Appeal No.347 of 2007 filed by the Respondents and in the Affidavit in Support in Civil Application No.936 of 2008 filed by these Respondents in the said Appeal, the Suit was purported to be filed in 1988 (i.e.17 years after the 15 Agreement for sale had been terminated by the Respondents in 1971/1972) on the patently false and untenable basis that the parties had allegedly orally agreed sometime in 1971-72, to indefinitely defer performance of the said Agreement, while keeping it subsisting. No particulars of any such Agreement have ever been stated either in pleading or in the evidence. It has been categorically admitted by the Appellants that there is no record of any such alleged oral agreement. Moreover even in the correspondence exchanged prior to the suit and in response to the Respondents notice of termination, no such Agreement had been referred to. The Appellants had till the cancellation/termination of the Agreement in 1971-72, failed to pay any ;amount whatever to the Respondents herein, in respect of the suit Agreement and the suit lands- which admeasures approximately 2000 acres. Moreover even in 1988 the suit had been filed only for a permanent injunction and not for specific performance of the alleged/terminated agreement. Notwithstanding the above the learned Trial Judge has partially decreed the suit. It is submitted that the Appellants do not have any case on merits. It is reiterated that the Appellants had no paid a 16 single paisa under the Agreement on the basis of which the Suit has been filed. In the circumstances I submit that no relief should be granted to the Appellants.” 17. The above contentions in para 6(d) have been dealt with by the Applicants in Paragraphs 13 of 14 of their affidavit-in-rejoinder thus; “13. With further reference to clause (d) paragraph 6 of the said affidavit, I deny that the Appellants/Applicants had any time pleaded any oral agreement “some time in 1971-72” between the Appellants/Applicants and the Respondent No.1 to defer performance of the said Agreement indefinitely while keeping it subsisting as falsely alleged. I say that almost 18 months after the exercise by the Appellants/Applicants of the option to continue the agreement notwithstanding absence of permission from the concerned authorities for residential purpose of the said property, the Respondent No.1 by their Advocates letter dated 2nd August, 1972 (Applicants Compilation Part I at page 85) falsely alleged that the said Agreement 17 stood cancelled. The Appellants/applicants there upon sent their Advocates letter dated 11th August 1972 (Applicants Compilation Part I at page 90) and thereby denied that the said Agreement stood cancelled as was falsely alleged by the Respondent. It was pointed out that first installment price had not become payable by the Appellants as mentioned herein above as well as the question of payment 2nd and 3rd installment of the price never arose. “14. Prior thereto the title of the Respondent No.1 had come under a serious cloud and Respondent No.1 were consequentially not in a position to cal upon the Applicants to pay any installment under the said Agreement. It was further stated therein that the said Agreement was never cancelled and that it continued to subsist subject to removal of the cloud on the title of the suit land of Respondent Nos.1 to 7. By another letter dated 27th October, 1972 (Applicants Compilation Part I page 101) it was reiterated that the said Agreement was not cancelled and was still subsisting. I deny that any oral agreement to defer performance of the 18 said agreement was at any time alleged by the Appellants/Applicants. I therefore deny that there was any question of Applicants having pleaded any such oral agreement. I submit that by the said letter dated 2nd August 1972 the Respondent No.1 wrongfully and illegally repudiated the said agreement by alleging that the said agreement stood terminated. I say that repudiation by Respondent No.1 was not accepted by the Appellants/Applicants and that by the said letters dated 11th August 1972 and 27th October 1972 the Appellants/applicants specifically treated the said agreement as subsisting notwithstanding the said wrongful repudiation by Respondent No.1. I say that by the said letters dated 11th August 1972 and 27th October 1972 the said Agreement continue to subsist and that both parties thereto continue to be bound by the said Agreement and to perform their respective obligations. I submit that having regard to the provisions of Section 39 of the Contract Act, 1872 the said Agreement continue to be operative despite it's repudiation by their letter dated 2nd August 1972 as same was not accepted by the Applicants by their letter dated 11th August 1972 19 and 27th October 1972. Consequently the said agreement continued to subsist thereafter. 18. Reading of the said pleadings therefore inter-alia discloses that the Applicants had given up their case that the sale deed was not to be executed till a future date. There is therefore substance in the submissions made by Shri Chinoy, the learned senior counsel for the Respondents that the said statement recorded in the order dated 28th March 2008 was a well considered statement which was in keeping with the case of the Applicants in the said Civil Application. As regards the explanation given by the Applicants that on legal advice which they have now obtained that the filing of a suit for specific performance would be contrary to their case in the said suit and the findings recorded by the trial Court. It would be pertinent to note that it is not as if the said findings were not known to the applicants. The Applicants were also represented by a learned senior counsel at the hearing of the said Civil Application. Considering the 20 case of the Applicants in the said Civil Application No.6661 of 2007 as extracted herein above and considering that the said findings were on record, it can only be said that the Applicants had made the said statement through the learned senior counsel appearing for them with full understanding of the legal implications. The Applicants having made the said statement and this Court having recorded the same and passed interim injunction on the said basis, the Applicants cannot now be allowed to resile from the same. If this course of action is to be followed and the parties are allowed to resile from their statements it would strike at the very sanctity of the judicial proceedings. The Applicants having filed their Application on 24th July 2007 which is four days before the period of four months is to come an end, in my view, the submission of Shri Chinoy, the learned senior counsel for the Respondents that the above Civil Application is lacking in bonafides appears to have some substance. 19. In so far as contention of Shri Dwarkadas, the learned senior counsel for the Applicants that the admission implicit in the said 21 statement is an admission of law and not of fact and, therefore, the statement comprising a statement on a question of law made by the learned senior counsel would not bind the applicants, in my view is mis founded. As mentioned herein-above the said statement was made on the basis of the pleadings of the Applicants in the said Civil Application. The basis of the said statement lies in the affidavit-in-rejoinder filed on behalf of the Applicants. The said statement is obviously a statement of fact and, therefore, Shri Chinoy is right in contending that a vested right which has accrued in favour of the Respondents on account of the said statement would be taken away. The judgments, cited by Shri Dwarkadas, the learned senior counsel for the Applicants, therefore, in my view, have no application to the facts of the present case. 20. In so far as plea of estoppel is concerned, may be the Respondents herein have not changed their position to their detriment but the fact remains that on the basis of the said statement the hearing of the Civil Application filed by the Respondents in their Appeal was deferred on account of it as also interim injunction was granted to the 22 Applicants in the said Civil Application No.6661 of 2007. In my view, flip-flops on behalf of the Applicants cannot be permitted and they will have to be pinned down to the statements made on oath as well as the statements made before the Court. The Applicants cannot be permitted to approbate or reprobate. 21. In so far as prayer clause (b) is concerned, whereby the Applicants seek withdrawal of the above Appeal to file an Application for review, the learned senior counsel for the Applicants has fairly accepted the position in law based upon the judgments cited (supra) that since the Appeal is admitted it is only if this Court permits withdrawal of the Appeal by annulling the order of admission that Applicants can file a review application. In my view, the request of the Applicants cannot be acceded to for more than one reason. The Applicants seek to file a