Bharat Karsondas Thakkar vs M/S Kiran Construction Co. & Ors

2. On 27.5.1949 one Sowar Ramji Vaity was given a grant by the Collector of Thane, which entitled him to lease of the lands in Serial Nos.83-91 in village Mulund for a term of 999 years. Sowar Ramji Vaity died in 1965 leaving behind him four legal representatives, namely, Jagannath, Babu, Vishnu and Bhaskar. On 1.10.1973 the Vaitys entered into an Agreement with one K.L. Danani to sell their rights and interests in the said land for a total consideration of Rs.2 lakhs. In between April and June 1974, Mr. K.L. Danani constituted a partnership firm with one Mr. K.B. Thakkar and S.S. Thakkar under the name of M/s Swas Construction Company. B.K. Thakkar, the appellant herein, who was then a minor, was also admitted to the benefits of the partnership firm. As his contribution towards the partnership firm K.L. Danani brought the benefits of the said Agreement dated 1.10.1973 to the partnership firm. In 1976, with the enactment of the Urban Land (Ceiling and Regulation) Act, 1976, K.L. Danani claiming to be in possession of the lands in question under the Agreement dated 1.10.1973 filed a statement as required under Section 6(1) of the aforesaid Act. On 12.6.1979 the Government of Maharashtra executed a lease in favour of the Vaitys for a total term of 60 years.

3. Soon, thereafter, on 18.6.1979 the Vaitys entered into another Agreement with M/s Modern Development Corporation granting them development rights over the same properties. Clause 14 of the Agreement mentioned the fact that the Vaitys had entered into an Agreement to sell the said lands to M/s Thakkar and Associates. M/s Modern Development Corporation, in their turn entered into an Agreement with Kiran Construction Company, the respondent No.1 herein, to transfer its beneficial interest in the suit land, except for Sl.No.91, in favour of the said respondent No.1. Clause 12 of the said Agreement required Modern Development Corporation to obtain confirmation from M/s Thakkar and Associates that there was no subsisting Agreement for sale in their favour in respect of the property agreed to be sold.

4. On 18.2.1980 the present appellant Bharat K. Das Thakkar and K.B. Thakkar filed Suit No.252 of 1980 in the Bombay High Court against K.L. Danani and S.S. Thakkar seeking a declaration that a partnership had subsisted between them and that K.L. Danani and S.S. Thakkar have retired from Swas Construction Company, and, in the alternative, for an order of dissolution of partnership, accounts, costs and other reliefs. On Notice of Motion No.283 of 1980 filed by the appellant and K.B.Thakkar in Suit No.252 of 1980, K.L. Danani gave an undertaking not to part with the possession of the suit land pending disposal of the Notice of Motion. The said Notice of Motion No.283 of 1980 was finally disposed of on 9.10.1980 and a Court Receiver was appointed by the Bombay High Court and put into possession of the suit lands.

5. On 15.5.1981 the Vaitys terminated the Agreement dated 18.6.1979 with M/s Modern Development Corporation Limited. Such termination was followed by Suit No.1578 of 1981 instituted by the respondent No.1 on 7.9.1981 against the Vaitys and the partners of M/s Modern Development Corporation Limited for specific performance of the Agreements allegedly executed on 18.6.1979 and 24.8.1979. On 14.9.1981 the Bombay High Court restrained the Vaitys and the partners of M/s Modern Development Corporation Limited from selling, transferring or further parting with possession of the suit lands. Notice of Motion No.1271 of 1981 on which the above restraint order was passed was heard on 1.7.1982 and the Vaitys were restrained during the pendency of the Suit No. 1578 of 1981 from selling, transferring, encumbering the suit property forming the subject matter of the Agreement dated 18.6.1979 entered into by the Vaitys with M/s. Modern Development Corporation Limited.

6. During pendency of the said suit for specific performance filed by respondent No.1, all the parties to Suit No.252 of 1980 arrived at a comprehensive settlement which was reduced into consent terms which were filed in the said suit pending before the Bombay High Court. By its order dated 6.5.1998 the Bombay High Court passed a decree in Suit No.252 of 1980 on the basis of the consent terms filed by the parties to the suit. By virtue of the said decree, the Vaitys, inter alia, admitted that an Agreement had been executed on 1.10.1973 in favour of K.L. Danani and that M/s Swas Construction Company was placed in possession of the suit lands on 3.8.1975.

7. Under the consent decree the Court Receiver was entrusted to discharge certain functions which had been agreed upon and recorded in the consent decree. Pursuant thereto in January 1999 the Court Receiver took out a Notice of Motion No.140 of 1999 in Suit No.1578 of 1981 filed by the Respondent No.1 praying that the order of injunction made on 1.7.1982 be vacated. On 25.8.1999 the Vaitys also took out Notice of Motion No.2700 of 1999 in the aforesaid suit for the same relief. During the pendency of the suit the respondent No.1 took out Chamber Summons No.1203 of 2000 in his suit seeking to amend the plaint by joining the respondent No.13 to 19 as defendants and to also challenge the consent decree passed by the Bombay High Court in Suit No.252 of 1980 on 6.5.1998. The High Court dismissed the Chamber Summons No.1203 of 2003 filed by the respondent No.1 in his suit and also vacated the injunction granted on 1.7.1982. As a consequence the other two notices of Motion for vacating the order of injunction dated 1.7.1982 were allowed. Aggrieved by the said order of the learned Single Judge dated 21.6.2001, the respondent No.1 filed Appeal No. 745 of 2001 before the Division Bench of the High Court. On 16.11.2006 the High Court allowed the aforesaid appeal, thereby allowing the amendment of the plaint and directed that the amendment to the plaint be effected accordingly.

11. Mr. De'Vitre, submitted that apart from the above, the fact relating to the earlier Agreement and the filing of Suit No.252 of 1980 and the appointment of the Court Receiver and his taking possession of the suit properties were intimated to the learned advocate for the Respondent No.1 by the learned advocate for the petitioner and K.B. Thakkar by letter dated 27.3.1984 and at least since that date the respondent No.1 had knowledge of the earlier Agreement and the consent decree, but he did not take any steps to amend the plaint of the suit filed by him on 7.9.1981 for specific performance of the Agreement said to have been executed between the Vaitys and the partners of M/s Modern Development Corporation and between M/s Modern Development Corporation and the respondent No.1. Such amendment was sought to be made only on 5.10.2000 by way of Chamber Summons No.1203 of 2000. Mr. De'Vitre submitted that even if the date of intimation of the filing of Suit No. 252 of 1980 on 27.3.1984 is taken to be starting point of limitation, even then the later suit filed by respondent had stood barred by limitation, and it was so held by the learned Single Judge of the Bombay High Court while rejecting the Chamber Summons No.1203 of 2000 filed by the respondent No.1.

25. In that view of the matter, although, we are setting aside the order of the Division Bench of the High Court impugned in this appeal, the respondent No.1 may, if so advised, file a separate suit to challenge the consent decree in view of the fact that he had been pursuing his claim before the wrong forum.

26. We, therefore, allow the appeal and set aside the impugned order of the Division Bench of the High Court in Appeal No. 745 of 2001 in Chamber Summons No. 1203 of 2000 in Suit No. 1578 of 1981, pending in the Bombay High Court. The respondent No.1 may file a separate suit to challenge the consent decree obtained by the appellant on 6th May, 1998 in Suit No. 252 of 1980 filed by the appellant herein and one K.B. Thakkar against K.L. Danani and S.S. Thakkar and invoke the relevant provisions of the Limitation Act, 1963, for the period during which he was pursuing his relief against the consent decree in his suit and the appeals arising therefrom.

27. There will be no order as to costs.