1 NM No.1574/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1574 OF 2010 IN REVIEW PETITION (LODGING) NO.57 OF 2010 IN SUIT NO. 1438 OF 2010 Sunder Ghanshamdas Bhagnani & Ors. ...Petitioners vs. Mahmood Pervez Choudhary & Ors. ...Respondents Ms.Gauri Godse with Ms.Asha Bhambwani i/b. Mr.Asif Iqbal Patel for the Applicant in support of Notice of Motion/Petitioner. Mr.R.V. Sipahimalani for Respondent No.1. Mr.Gaurav Joshi i/b. Mr.S.J. Khera for Respondent Nos.2 and 3. Mr.G.G.Ketkar, 1st Asstt.to Court Receiver present. CORAM : V.M. KANADE, J. DATED : AUGUST 3, 2010 P.C. :- 1 Heard the learned Counsel appearing on behalf of the plaintiff and the defendants and the petitioners in review petition. 2 NM No.1574/2010 2 Delay of 71 days caused in filing the review petition is condoned for reasons stated in paras 4, 5, 6 and 7 of the affidavit-in-support of the Notice of Motion. Brief facts are as under :- 3 The petitioner has filed this review petition for reviewing/modifying/setting aside judgment and decree dated 8th February, 2010 passed by this Court in Suit (Lodging) No.3486/2009. A suit was filed by the plaintiff against defendant nos.1 and 2 and a Court Receiver was also made party to the said suit seeking possession of Flat No.403 of the 4th Floor of the building known as Mangal Mahesh Baug and for a further declaration that the Articles of Agreement dated 14th July, 1988 for the sale of the flat No.403 on the 4th floor of the said building was valid, subsisting and enforcible and the plaintiff was entitled to Specific Performance thereof against defendants No.1 and 2. In the said 3 NM No.1574/2010 suit, on 8th February, 2010, Counsel for the plaintiff and defendant nos.1 and 2 submitted that they had settled the dispute and they have filed Consent Minutes of Order. It was submitted that the suit, therefore, may be decreed in terms of the Minutes of Order. Decree was, accordingly, passed in terms of the Minutes of Order on the said date and the suit was, accordingly, disposed of. By the said Minutes, it was agreed that the Court Receiver would take possession of the suit flat No.403 and handover the possession of the flat to the plaintiff herein. Accordingly, Court Receiver handed over the possession of the flat to the plaintiff herein. Thereafter, the present review petition has been filed by the petitioners and it is contended that the said consent decree had been obtained by the plaintiff by suppression of material facts and by playing fraud on the court. It is, thus, prayed that the said order passed by this Court may be recalled. 4 NM No.1574/2010 4 Miss Gauri Godse, learned Counsel appearing for the petitioner submitted that prior to the filing of the suit by the plaintiff herein, the petitioners had filed suit in this court for Specific Performance of the respective Agreements to the plaintiff therein and for consequential reliefs vide Suit No.3686/1990. In the said suit, one of the prayer was for appointment of the Court Receiver. It is submitted that in the said suit, the respondent nos.2 and 3 had taken nearly 80% of the agreed consideration amount and had mis-appropriated the money of the petitioners and the other plaintiffs in the principal suit and had abandoned development of the suit building. In the said suit, Notice of Motion was taken out, however, no interim relief was granted by the learned Single Judge and therefore, an appeal was preferred before the Division Bench and on 19th July, 1994, the Division Bench of Their Lordships M.L. Pendse and N. D. Vyas in Appeal No.1030 of 1993 appointed the 5 NM No.1574/2010 Court Receiver and the petitioner was appointed as Agent of the Court Receiver without payment of security or royalty and the Court Receiver was directed to complete the construction by appointing some other builder. She submitted that accordingly, in view of the said order, Court Receiver took possession of the entire building and the petitioners spent huge amount for completion of the construction of the said building. It is submitted that since the Court Receiver was already in possession of the entire building, it was incumbent for the plaintiffs to have mentioned this fact in the plaint. It is submitted that though respondent nos.2 and 3 in the review petition were parties in the earlier suit and had knowledge about the said orders passed by the Division Bench, had deliberately suppressed this fact from this Court and had, in collusion with the plaintiff, obtained the decree. She also submitted that in another suit also, Court Receiver was appointed and possession of 6 NM No.1574/2010 Flat No.403 was given to the plaintiff in the said suit. She also submitted that in the order passed by the Division Bench dated 19th July, 1994, Division Bench had clearly recorded that respondent nos.2 and 3 had assigned all their rights to the defendant nos.5 and 6 in the said suit and therefore, they had no right, title, interest in the suit premises. 5 On the other hand, Shri Gaurav Joshi, learned Counsel for the plaintiff submitted that the review petition was not maintainable since the petitioners did not have any locus in filing this review petition challenging the judgment and decree passed in the suit. He submitted that even otherwise, the said judgment and decree was not binding on the petitioners and it was always open for them to challenge the said decree by filing a suit. Thirdly, it was submitted that though initially, a Court Receiver was appointed in second Suit No.3686/1990, however, in the said suit, final 7 NM No.1574/2010 decree was passed and the plaintiff was directed to take possession of flat no.206 and therefore, flat no.403 was vacant which was evident from the Court Receiver s report. 6 I have heard both the learned Counsel at length. The Court Receiver has also filed his report. It is an admitted position that in the earlier suit viz. Suit No.3686/1990, the Division Bench by its order dated 19th July, 1994 had appointed a Court Receiver and one Mr.Bajaj was appointed as Agent of the Court Receiver who was one of the plaintiff in the said suit and thereafter, one Mr.Nitin Laxman Bajaj and the Court Receiver had taken possession of the entire building and thereafter, the construction of the entire building was completed and the plaintiff had spent huge amount of money for completing the construction work. In the said order passed by the Division Bench, there is a clear finding that the respondent 8 NM No.1574/2010 nos.2 and 3 had assigned their entire rights to defendants no.5 and 6 in the said suit and as such, they had no right, title, interest over the said suit flat no.403. The suit filed by the petitioners is still pending in this court and the Court Receiver is taking steps to obtain the Occupancy Certificate. It was the duty of the plaintiff or at least the respondent nos.2 and 3 herein to have informed the court about the said fact. However, this fact was suppressed from this court and therefore, relying on the Consent Minutes tendered by the plaintiff and the defendants, Decree in terms of the Minutes of Order was passed. In my view, there is a clear suppression of material facts from the court and on that ground alone, the said impugned order passed on 8th February, 2010 will have to be recalled. The observation made by the Apex Court in the cases of S.P. Chengalvaraya Naidu v. Jagannath & Ors. (AIR 1994 SC 853) and A.V. Papayya Sastry & Ors vs. Govt. of A.P. & Ors.,((2007) 4 SCC 9 NM No.1574/2010 221) is squarely applicable to the facts of the present case. Even assuming for the sake of argument that the petitioners herein have no locus even then once this fact is brought to the notice of the court, the Court can suo motu also recall the said order which is obtained by playing fraud on the court. 7 In the result, review petition is allowed. The impugned order is recalled. The Court is directed to take back the possession from the plaintiff herein within a period of two weeks from today. The plaintiff may apply for a decree in terms of the Consent Terms, however, only after giving notice to the petitioners herein. The review petition, accordingly, is allowed in the aforesaid terms. Notice of Motion does not survive and it is, accordingly, disposed of. (V.M. KANADE, J.)