Milind Moreshwar Kowley vs Manohar Bhaskar Kowley (Dead) By ...

We may also notice at this stage that the plaintiff in Suit No.2493 of 1988 which was filed by him several years after attaining majority is the son of defendant No.1 in Suit No.618 of 1967 and one of the appellants in Appeal No.368 of 1994. In the aforesaid Suit No.618 of 1967, a consent decree was passed which has given rise to the litigation that followed. We shall first refer to the facts of Suit No.618 of 1967.

One Bhaskar Anant Kowley died in the year 1957 leaving behind four sons and four daughters and his widow. A suit for partition was filed by one of his sons and the defendants in the suit were his three brothers and four married sisters. Bhaskar Kowley left behind five plots in the Town Planning Scheme, Bombay City No.IV (Mahim area). Four of the plots were built upon and were occupied by the members of the Kowley family and their tenants, while one of the plots was vacant and had been reserved for public purpose under the town planning scheme. Many of the shops in the building had been let out to tenants. Since disputes arose between the members of the family, Suit No.618 of 1967 was filed by Manohar Kowley for partition by metes and bounds. In the Suit filed on October 6, 1967, the plaintiff claimed that he as well as his brothers had 99/432 share each in the Suit schedule properties. In the said suit a receiver was appointed on April 6, 1968 who started collecting the rents etc. from the tenants. A preliminary decree of partition dated September 17, 1975 was passed by consent to the effect that the sons had 99/432 share each while the daughters had 9/432 share each. A Commissioner was appointed to ascertain and determine the shares of the parties and to partition the same by metes and bounds. The Commissioner submitted his report on June 29, 1979 to which exceptions were filed by some of the defendants. Ultimately a final decree was passed on February 28, 1980 by consent of parties and the consent terms were signed by all the defendants of the Suit. Two of the brothers namely, Moreshwar (father of the plaintiff ) in Suit No.2493 of 1988 and Hareshwar represented their branches as Kartas. The consent decree provided that the defendants shall within one month from the date of decree bring offers from intending purchasers for purchase of four plots and the right, title and interest in the 5th plot in one lot on as is where is basis. The offer was to remain open for nine weeks from the date of opening and that the defendants shall hand over vacant possession to the intended purchaser of the structures occupied by them and standing on Final Plot No.982. The offers were to be opened in the presence of the plaintiff and the defendants and their respective advocates. The decree also provided that the plaintiff shall have first right to exercise the option to purchase the said plots on the terms and conditions as set out in the consent terms at the highest price offered by the intending purchasers. The plaintiff was required to exercise his option within four weeks from the opening of the offer and if he decided to exercise his option to purchase the plots he was required to deposit the amount on or before December 31, 1980. In case he did not exercise the option to purchase the plots the defendants shall have the right to exercise the option to purchase the plots.

For one reason or the other, the parties could not take steps pursuant to the consent decree passed in February, 1980. Ultimately, a Chamber Summons was taken out for extension of time which was disposed of on August 13, 1985 when the parties again entered into consent terms providing for variation of the consent decree passed earlier. The variation was only to the extent that both the plaintiff as well as the defendants were at liberty to bring the offers for purchase of the properties on or before September 27, 1985. No further extension was to be granted. The offers received were to be opened by M/s Markand Gandhi & Company, Attorneys, in the presence of the parties and the plaintiff was given the first option to purchase the properties with reference to the highest offer. Accordingly, offers were received and M/s Markand Gandhi and Company determined that the highest offer received was Rs.30,00,000/-. It is not necessary to refer to some other proceedings taken by the plaintiff, but suffice it to say that on November 5, 1985, the plaintiff was given further time to exercise his option. Appeals were preferred against the aforesaid order but were dismissed on January 30, 1986. The plaintiff, however, was given liberty to exercise option till February 14, 1986 and the sale was to be completed by January 30, 1987. The plaintiff exercised his option on February 13, 1986 and deposited a sum of Rs.3,00,000/- representing 10% of the price on February 20, 1986. Some difficulties arose on account of the fact that some of the defendants were not willing to sign the agreement necessitating extension of time for completion of sale. The executing Court directed that the sale be completed within a period of 9 months from the date of signing of the agreement. The agreements were signed by Moreshwar (father of plaintiff in Suit No.2493 of 1988), his wife and one of his two sons namely, Sanjay on August 15, 1987. He had earlier taken out Notice of Motion on June 10, 1987 seeking modification of consent terms. The plaintiff made a grievance that the defendants were deliberately delaying signing of the agreement and, therefore, the Court should direct the Prothonotary and Senior Master to sign the agreement on behalf of the defaulting defendants in case they did not sign the agreement before August 10, 1987. An order was passed accordingly. Some of the other defendants, however, did not sign the document and ultimately on application of the plaintiff, the Prothonotary and Senior Master was directed to sign the documents by March 22, 1988.

In this manner, the trial court was seized of three proceedings, namely two Notices of Motion taken out by the father and uncles of Milind (defendants 1 and 2 in the first suit) and the Notice of Motion taken out by Milind, the plaintiff in second Suit No.2493 of 1988. The decree holder also took out Chamber Summons No.294 of 1989 seeking direction to the Prothonotary and Senior Master to execute the conveyance. The trial court by its common order of September 11, 1993 dismissed all the three Notices of Motion and allowed the Chamber Summons taken out by the plaintiff in Suit No.618 of 1967. The trial court held that prima facie, the suit filed by Milind, namely, Suit No.2493 of 1988 was barred by limitation, and perhaps filed at the behest of his father Moreshwar. It also negatived the contention that the period for completion of the sale deed had expired and, therefore, the consent decree was not executable. It also held that there was no substance in the submission that the provisions of Order 23, Rule 3B of the Code of Civil Procedure were not complied with and, therefore, consent decree was invalid.

We shall not take up for consideration Notice of Motion No.2392 of 1989 filed by plaintiff Milind in Suit No. 2493 of 1988. We may recapitulate some of the facts. The preliminary decree was passed on September 17, 1975 and the final decree followed on February 28, 1980. The decree was varied to some extent on August 13, 1985, though as found by the courts below the variation was only with regard to the mode of sale. In the earlier consent decree only the defendants were required to bring purchasers for the plots in question but under the modified decree as passed on August 13, 1985 even the plaintiff was permitted to bring purchasers apart from the defendants. The rest of the terms and conditions were substantially the same with extension of time granted to complete the formalities.

Having considered all aspects of the matter, we find no reason to interfere with the concurrent findings recorded by the trial court as well as the Appellate Bench of the High Court. We, therefore, find no merit in Civil Appeal No.368 of 1994.

In the result, we find no merit in the appeals and they are accordingly, dismissed but without any order as to costs.