AKHIL BHARTVARSHIYA MARWARI AGARWAL JATIYA KOSH & ORS. versus BRIJLAL TIBREWAL & ORS.
[2018] 14 S.C.R. 870, Supreme Court of India, 2018
Outcome: Disposed off
Segment: Ratio
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AKHIL BHARTVARSHIYA MARWARI AGARWAL JATIYA
KOSH & ORS.
v.
BRIJLAL TIBREWAL & ORS.
(Civil Appeal Nos. 12088-12089 of 2018)
DECEMBER 14, 2018
[A. K. SIKRI, ASHOK BHUSHAN AND M. R. SHAH, JJ.]
Practice & Procedure – Appellant No.1-Trust acquired 9797
sq. meters of land for providing housing to weaker sections of the
society – Said area of 9797 sq. meters included the Plot bearing
CTS No.97/A-5/2 – Trust constructed building A-1 on sub-plot carved
out of the said plot – Purchasers-Respondents took possession of
the respective flats – Respondents filed suit inter alia for
directing the Trust and others to execute the Conveyance of Plot
No. A/1 claiming that they were entitled to the Plot area of around
1205 sq. yards (1009.70 sq.meters) – Trial Court decreed the Suit –
First Appeal before the High Court, dismissed vide order dated
04.12.2014 – Thereafter, the High Court on oral application of the
Respondents by way of “Note for speaking to the Minutes” clarified
that the words “2700 sq. feet” appearing in the judgment
dtd. 04.12.2014 should be read as “2700 sq. meters” and directed
the execution of the deed of Conveyance of the land to the extent of
building i.e. 2700 sq. meters – On appeal, held: A “Note for speaking
to Minutes” is required to be entertained only for the limited purpose
of correcting a typographical error or an error through oversight,
which may have crept in while
transcribing the original order – It
cannot be considered at par with review application or with an
application for clarification/modification of order – While passing
the order below the “Note for speaking to the Minutes”, the High
Court travelled beyond its jurisdiction in regard to the scope of
deciding a “Note for speaking to the Minutes” and virtually modified
its original order passed in First Appeal – Order passed below the
“Note for speaking to the Minutes” set aside – Even otherwise,
it is not appreciable how the High Court arrived at the figure of
2700 sq. meters – Order passed by the Divisional Registrar, Co-
operative Societies, in proceedings initiated by the Society of flat
purchasers, granting deemed conveyance of area admeasuring
2593.70 sq.meters is modified to the extent of area admeasuring
1009.70 sq.meters only.
[2018] 14 S.C.R. 870
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Disposing of the matters, the Court
HELD: 1.1 While passing order below the “Note for
speaking to the Minutes”, the High Court travelled beyond its
jurisdiction in regard to the scope of deciding a “Note for speaking
to the Minutes”. A “Note for speaking to Minutes” is required
to be entertained only for the limited purpose of correcting a
typographical error or an error through oversight, which may have
crept in while transcribing the original order. Once, the judgment/
order is pronounced and if any party to the same wants any
rectification of any typographical error and any clerical mistake
regarding the date or number, such a party may apply to the
concerned Court for correcting such an error in the judgment/
order.  However, a “Note for speaking to the Minutes” cannot
be considered at par with a review application or in a given case,
with an application for clarification/modification of an order.  While
passing the impugned order below the “Note for speaking to the
Minutes”, the High Court virtually modified its original order
passed in First Appeal.  While passing the impugned order, the
High Court has given further directions as if the High Court was
passing the order on an application for clarification/modification.
Therefore, such a course was not open to the High Court while
deciding a “Note for speaking to the Minutes”.  Since, the High
Court has travelled beyond its jurisdiction in regard to the scope
of deciding a “Note for speaking to the
Minutes”, the impugned
order passed below the “Note for speaking to the Minutes” is
set aside. [Para 12][888-A-E]
1.2 Even otherwise, the impugned orders are not
sustainable at law.  It was the Appeal before the High Court,
preferred by the Appellants herein–original Defendants,
challenging the judgment and decree passed by the Trial Court,
by which the Trial Court specifically passed a decree directing
the only Defendant No.1 to convey the title and execute document
in favour of the Society in respect of Suit Building and land to the
extent of Suit Building.  The area of Suit Building was 1009.70
sq. meters.  Against that judgment and decree, original Private
Defendants-Appellants were before the High Court.  The Trial
Court never passed any decree directing the Appellants to
execute the Deed of Conveyance to the extent of 2700 sq. meters
of land.  Therefore, while dismissing the appeal, even otherwise,
AKHIL BHARTVARSHIYA MARWARI AGARWAL JATIYA
KOSH v. BRIJLAL TIBREWAL
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the High Court could not have passed any further order beyond
the judgment and decree passed by the Trial Court and that too
in absence of any cross objection and/or cross appeal preferred
by the original Plaintiffs.  In an Appeal preferred by the original
Defendants, at the most, the High Court can dismiss the Appeal
and confirm the judgment and decree. However, the Appellants-
original Defendants cannot be put in a worse condition than beyond
the judgment and decree passed by Trial Court which was appealed
before the First Appellate Court and that too in the absence of
any cross-appeal or cross objection by the original Plaintiffs.
Therefore also, the impugned orders passed by the High Court
which, as such, will go beyond the judgment and decree passed
by the Trial Court are not sustainable. Thus, by passing the
impugned order, it can be said that the High Court has passed
order beyond the scope and ambit of the Appeal before it and has
exceeded in its jurisdiction not vested in it. [Para 12.1]
[888-F-H; 889-A-D]
1.3 Even otherwise, it is not appreciable how the High Court
has arrived at the figure of 2700 sq. meters.  It appears from the
material on record that it was never the case on behalf of the
original Plaintiffs that the original Defendant No.1-Trust shall
execute the Deed of Conveyance of the land to the extent of
2700 sq. meters.  Even considering the map sanctioned by the
Corporation and even considering the reply filed by the
Corporation before this Court, it appears that the total plot area
of CTS No. 97/A-5/2 on which the building A-1 was constructed,
was 2593.70 sq. meters, out of which there was construction of
building A-1 on the land admeasuring 1009.70 sq. meters.
Therefore also, the impugned order passed by the High Court
directing the Appellants herein-original Defendant No.1 to
execute the Deed of Conveyance in respect of the land to the
extent of 2700 sq. meters is not sustainable.[Para 12.2]
[889-E-G]
1.4 The impugned orders passed by the High Court dated
23.12.14 passed below “Note for speaking to the Minutes”, in
First Appeal and the order passed in Civil Application deserve
to be quashed and set aside.  [Para 12.5][890-H; 891-A]
1.5 The original Plaintiff-Society shall not be entitled to the
Deed of Conveyance to the extent of area admeasuring 2700
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sq.meters and/or even 2593.70 sq.meters and they shall be
entitled to the Deed of Conveyance of the area admeasuring
1009.70 sq.meters which was the built up area of building A-1
and, therefore, the judgment passed by the High Court confirming
the order passed by the Divisional Registrar Co-operative
Societies of deemed Conveyance of the area admeasuring
2593.70 sq. meters is also quashed and set aside. The order
passed by the Divisional Registrar of Deemed Conveyance of
the area admeasuring 2593.70 sq.meters is modified to the extent
of granting deemed Conveyance of the area admeasuring 1009.70
sq.meters only. [Para 13.1, 15][891-D-F; 892-B]
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 12088-
12089 of 2018.
From the Judgment and Order dated 23.12.2014 of the  High
Court of Judicature at Bombay in First Appeal No. 466 of 2010 and
order dated 04.07.2015 in Civil Application No. 1698 of 2015.
With
Civil Appeal No. 12090 of 2018 and Contempt Petition
Nos. 25-26 of 2018.
C. A. Sundaram, Shyam Divan, Neeraj Kishan Kaul, P. S. Patwalia,
Pallav Shishodia, Sr. Advs.,  Jatin Zaveri, Suraj Iyer, Neel Kamal Mishra,
Ms. Rohini Musa, Abhishek Gupta,  Zafar Inayat, R. P. Bhatt, Ashok M.
Saroagi, Ms. Vithika Garg, Ms. Sangeeta Kumar, R. R. Verma, Ms.
Vidushi Garg, Bhushan Oza, Ms. Priti Purandare, Anand Sukumar,
Bhupesh Kumar Pathak, Ms. Meera Mathur, Nishant Ramakantrao
Katneshwarkar, Advs. for the appearing parties.
The Judgment of the Court was delivered by
M. R.
SHAH, J.
1. Leave granted in all the Special Leave Petitions.
2. As all these appeals are interconnected between the same
parties and with respect to the same properties, these are being disposed
of by this common judgment.
3. Feeling aggrieved and dissatisfied with the impugned order dated
23.12.2014 in F. A. No. 466 of 2010 and the order dated 04.07.2015 in
Civil Application No. 1698 of 2015 in F.A.No.466 of 2016 passed by the
High Court of Judicature at Bombay (hereinafter referred to as the ‘High
Court’), the original Defendants have preferred the present appeals.
AKHIL BHARTVARSHIYA MARWARI AGARWAL JATIYA
KOSH v. BRIJLAL TIBREWAL
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3.1 Feeling aggrieved and dissatisfied with the impugned final order
dated 10.09.2015 passed by the High Court in Writ Petition No. 992 of
2015 the original Petitioners of the aforesaid Writ Petition have preferred
the present appeals.
4. The facts leading to the present appeals in nutshell are as under:
That Appellant No. 1 Trust- Akhil Bhartvarshiya Marwari Agarwal
Jatiya Kosh (hereinafter referred to as the ‘Trust’) was, registered under
Bombay Public Trusts Act, 1950.  According to the Trust, under a duly
registered Conveyance dated 30.10.1974, the Trust acquired 9797 sq.
meters of land with a charitable object of providing Housing to weaker
sections of the Society.  That the said area of 9797 sq. meters included
the Plot bearing CTS No. 97/A-5/2 of Village Chinchavli, Malad (East),
Mumbai admeasuring 2593.70 sq. meters.  According to the Trust, the
Mumbai Municipal Corporation sanctioned the plan of the Trust in the
year 1974-75 for construction of building A-1 to be constructed on sub-
plot carved out of CTS No. 97/A-5/2 (the disputed property).  That the
building A-1 was to consume the area of 1009.70 meters equivalent to
1205 sq. yards.  That, between 1975-78, the Trust constructed building
A-1 comprising of 20 Flats each admeasuring built-up area of 588 sq. ft.
and the purchasers took possession of the respective flat.  Thereafter,
about 26 years after they took possession, the
Purchasers-Respondents
herein the original Plaintiffs filed Suit No. 4111 of 2004, inter alia,
for directing the Trust and others to execute the Conveyance of Plot
No. A/1 claiming that they were entitled to the Plot area of around 1205
sq. yards (1009.70 sq.meters).  That the original Plaintiffs prayed for
the following reliefs in the Suit:
a) That it is declared that the Defendant No. 1 is bound and liable:
i) To complete the said building A/1 in accordance with the
building plans sanctioned by and in terms of the conditions
of IOD and CC issued by the Defendant No. 2 in respect
thereof.
ii) To obtained Occupation Certificate for the said building No.
A/1.
iii) To provide supply of municipal water to the said building
A/1.
iv) To obtain building Completion Certificate for the said building
A/1.
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v) To form co-operative housing society of the Plaintiffs.
vi) To convey the said building A/1 together with the plot of
land J/1.
b) That this Hon’ble Court may be pleased to pass permanent
order directing:
i)
Defendant No. 1 to obtain occupation certificate and
municipal water connection to the said building A/1.
ii)
Defendant No. 1 to form co-operative housing society of
the plaintiffs.
iii) Defendant No. 1 to convey the said building together with
plot J/1 to the Co-operative Housing Society of the Plaintiffs.
iv) Defendant No. 1 not to carry out any construction upon
the said plot J.
v) Defendant No. 2 to cancel the permission given to the
Defendant No. 1 to carry out construction on the said
plot “J”.
vi) Defendant No. 2 not to give any further permission to
Defendant No. 1 to carry out any construction on the said
plot “J”.
vii) Defendant No. 2 to take necessary actions against
Defendant No. 1 for carrying out construction of
unauthorized hutments.
viii)Defendant No. 2 to take necessary actions against
Defendant No. 1 for cutting of trees.
4.1 It was the case on behalf of the original Plaintiffs that the
Plaintiffs have paid full purchase price for purchase of their respective
flats in the said building A-1, constructed by the original Defendant No.
1, Trust.  That, though the Trust handed over the possession of the flats
to the respective flat owners and they are put in possession and
occupation of the respective flats, the Trust have failed to
obtain
occupation certificate of the said building in terms of the IOD and CC
issued by the Corporation.  That it was the case on behalf of the original
Plaintiffs that the original Defendant No. 1 Trust, as promoter under the
provisions of Maharashtra Ownership Flats Act, 1963 (hereinafter
referred to as the ‘MOFA’) were bound to enter into the agreement, as
AKHIL BHARTVARSHIYA MARWARI AGARWAL JATIYA
KOSH v. BRIJLAL TIBREWAL [M. R. SHAH, J.]
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prescribed under the said Act with all such flat purchasers for sale of
the flats. It was the case on behalf of the original Plaintiffs that, under
the provisions of the ‘MOFA’ and, otherwise also, it is the basic duty and
responsibility of the Trust to provide all the essential supplies and services
including supply of water, electricity and sanitary services to be enjoyed
by the flat purchasers.  It was also the case of the original Plaintiffs that
the Trust was bound to form the Co-operative Society of the flat
purchasers under the ‘MOFA’, however, though the Trust collected from
each of the flat purchasers an amount of Rs. 351/- towards membership
fee and share money of such Society, they did not form such a Co-
operative Society. It was a specific case on behalf of the original Plaintiff
that the building occupied by the plaintiffs are consisting of ground plus
four storeys and the total built-up area is around 1205 sq. meters.  It was
the case on behalf of the original Plaintiffs that, under the provisions of
law, the Plaintiffs and/or the Society to be formed by the flat purchasers
are entitled to an area of land corresponding to the built-up area of building
so constructed of such land utilizing the FSI permissible at the relevant
time.  It was the further case on behalf of the original Plaintiffs that
despite the above, the Trust original Defendant No. 1, made an attempt
to
carry out some construction just adjacent to the said building A-1 of
the plaintiffs which was registered by the plaintiffs even by making
complaint to the Defendant No.2, Corporation.  However, as no action
was taken by the Corporation for illegal and unauthorized construction
on the plot adjacent to building A-1, the original Plaintiffs instituted the
aforesaid Suit and prayed for the aforesaid reliefs.
4.2 The Suit was resisted to by the original Defendants. The original
Defendant No. 1 Trust and original Defendants Nos. 3 to 17, filed the
common written statement denying the averments and allegations in the
Suit.  It was the case on behalf of the original Defendant, so stated in the
written statement that the original Defendant No. 1 and 3 to 17 are the
owners of property bearing CTS Nos. 97/A-5/2, 97/A-5/4 and 97/A-5/3
total admeasuring 9797 sq. meters.  That the property was purchased
by the Trust with intention to develop the same for the benefit of middle-
class citizens.  The application was made to the Divisional Registrar to
grant permission which was granted on 20.12.1975. That thereafter,
Defendant No. 1 Trust appointed an Architect, for the purpose of
submitting plans. The plans were submitted for construction of 14
buildings, each being ground plus four upper floors. It was further
contended that the Trust could complete only one building, as further
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construction could not be done because of the declaration of the Suit
Plaint as the surplus land under Urban Land Ceiling Act.  The appeal
preferred by the Trust was partly allowed in 1993 and 1998 and only
4000 sq. meters area was declared as surplus land.  It was submitted
that, therefore, the Trust has to drop the idea of further development and
it was, therefore, decided to construct structures for only charitable
purposes like Schools, Colleges etc.  It was further contended that the
plot is effectively divided into three parts, first part is building occupied
by the plaintiffs, second is the School building and the third being the plot
reserved for garden.  It was further contended that FSI in respect of the
plot in which the plaintiffs’ building is situated is not fully consumed and
they are entitled to consume full FSI by putting up additional construction
for charitable purposes and only thereafter they are ready and willing to
convene the property.  It was further contended that there is no
agreement entered into with any of the flat purchasers and that only
after approval of the draft, the agreement can be entered into. It was
submitted that after compliance of all these formalities, the original
Defendant No. 1 Trust, can consider the formation of the society.
Therefore, it was requested to dismiss the Suit.
4.3 That the learned Trial Court framed the following issues:
1)
Does the defendant no. 2 prove that the suit is maintainable
in absence
of notice u/section 527 of MMC Act?
2)
Does plaintiff prove that he is entitled for direction to
defendant no. 1
I.
To complete the building A-1 in accordance with the
building plans sanctioned by and in terms of the
condition from IOD and CC issued by the defendant
no. 2 Corporation in respect thereof?
II.
To obtain occupation certificate for the building
no. A-1.
III. To provide supply of municipal water to the building
no.-A.
IV. To obtain building completion certificate for building
no. -A.
V.
To form co-operative housing society of the front age.
AKHIL BHARTVARSHIYA MARWARI AGARWAL JATIYA
KOSH v. BRIJLAL TIBREWAL [M. R. SHAH, J.]
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VI. To convey building no. A-1 with the plot of land J-1 to
the purchasers.
3) Does plaintiff prove that they are entitled for the reliefs as
prayed?
4) What decree/order?
4.4 That on behalf of the plaintiffs as many as seven witnesses
came to be examined who were all flat purchasers.
4.5 On behalf of Defendant. one Omprakash Didwanja DW-1
came to be examined.  Both the parties produced the documentary
evidences.  That, on appreciation of evidence, the learned Trial Court
decreed the Suit as under:
“Defendant No.1 shall execute and register the agreements in
favour of flat purchasers as per Section 4 of ‘MOFA’ at the cost of
plaintiffs within three months from the date of order.
Defendant No.1 shall complete the suit building in accordance
with the building plans sanctioned as per IOD and CC issued by
Defendant No. 2 and obtain Occupation Certificate within four months
from the date of order.  If defendant no. 1 failed to do so within stipulated
time, plaintiffs shall get the work done through any other Builder of their
choice and recover the cost from defendant no. 1 and thereafter BMC
shall grant Occupation Certificate to the plaintiffs.
Defendant No.1 is also directed to make the necessary compliance
for obtaining supply of municipal water to the suit building.
Defendant No. 2 shall supply the municipal water to the suit building
on humanitarian ground till the full compliance is made
by plaintiffs and
defendant no. 1.
Defendant No. 1 is directed to form a co-operative Housing Society
of the flat purchasers of the suit building within four month from the date
of order:-
Defendant No. 1 is entitled to the balance FSI of the said plot of
land which was available to them at the time of sanction of original
plans, which Defendant No. 1 is entitled to consume the same till
conveyance is registered.
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Defendant No. 1 shall convey the title and execute documents in
favour of the society in respect of the suit building and land to the extent
of suit building as shown in the plans within six months from the date of
the order, failing which plaintiffs shall be entitled to apply before the
Competent Authority u/section 5A for unilateral conveyance in their
favour.
Decree be drawn accordingly.”
5. That feeling aggrieved and dissatisfied with the judgment and
decree passed by the Trial Court decreeing the Suit No. 4111 of 2004,
the original Defendants (except for Defendant No. 2 Corporation)
preferred the First Appeal No. 466 of 2010 before the High Court. At
this stage, it is required to be noted that during the pendency of the Suit,
the Society of the flat purchasers was registered in the name of Agrasen
Co-operative Housing Society Ltd. under the provisions of the
Maharashtra Co-operative Societies Act, 1960.  Thereafter, during the
First Appeal preferred by the original Defendants, in the year 2014, the
Society initiated proceedings before Divisional Registrar, Co-operative
Societies for execution of Conveyance Deed. That, thereafter, the High
Court dismissed the Appeal No. 466 of 2010 by judgment and order
dated 04.12.2014.  The High Court specifically held that a Deed of
Conveyance of the land to the extent of the building to be executed
within nine months.
5.1 It appears that in the proceedings before the Divisional
Registrar initiated by the Society,
the Trust filed a reply before the
Divisional Register on 10.12.2014 pointing out that the Respondents herein
the original Plaintiffs were entitled to the Conveyance of land admeasuring
1009 sq. meters only and not 2593.70 sq. meters as claimed by original
Plaintiffs.  That, thereafter, the High Court, on an oral application of the
Respondents herein by way of “Note for speaking to the Minutes” clarified
that the words “2700 sq. feet” appearing in paragraph 8 of the judgment
and order dated 04.12.2014 should be read as “2700 sq. meters”.  It
appears that as the objection was raised by the Trust before the Divisional
Registrar that the Respondents are entitled to Conveyance of land
admeasuring 1009 sq. meters only and not 2593.70 sq. meters as alleged
and prayed, and to get over the said objection of the Appellants before
the Divisional Registrar, the Respondents-original Plaintiffs again made
an oral application by way of “Note for speaking to the Minutes” alleging
that though in the paragraphs 8 and 9 of the judgment and order dated
AKHIL BHARTVARSHIYA MARWARI AGARWAL JATIYA
KOSH v. BRIJLAL TIBREWAL [M. R. SHAH, J.]
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04.12.2014, it was mentioned that the Respondents were entitled to get
the Deed of Conveyance executed in respect of the area equivalent to
2700 sq. meters, but in the operative part,  it was mentioned that
Conveyance in respect of the land only to the extent of plot be executed
and, therefore, the order deserves to be corrected by way of mentioning
the area of 2700 sq. meters.  That by the impugned order, the High
Court virtually modified its earlier order dated 04.12.2014 and directed
the execution of the deed of Conveyance of the land to the extent of
building i.e. 2700 sq. meters.  It appears that on the basis of the order
dated 23.12.2014 passed by the High Court directing to execute the
Conveyance of the land to the extent of the building i.e. 2700 sq. meters,
vide order dated 13.01.2015, the Divisional Registrar passed an order
granting deemed Conveyance of the area admeasuring 2593.70 sq.
meters.
5.2 It appears that, thereafter, the Appellant herein, the Trust and
other filed Civil Application No. 1698 of 2015 in F.A. No. 466 of 2010,
praying for modification of the direction to execute the deed of
Conveyance to the extent of 2700 sq. meters.  Simultaneously, the
Petitioner also filed Writ Petition No. 992 of 2015, challenging the order
passed by the Divisional Registrar granting the deemed Conveyance.
5.3 That by impugned order the High Court has dismissed the
Civil Application
No. 1698 of 2015 in First Appeal No. 466 of 2010.
However, by dismissing the Civil Application, the High Court has further
clarified that the appellants shall be entitled to consume the balance FSI
of plot of the land.  That by the impugned order, the High Court has also
dismissed the Writ Petition No. 992 of 2015 and has confirmed the order
of deemed Conveyance for the area admeasuring 2593.70 sq. meters.
6. Feeling aggrieved and dissatisfied with the impugned order
passed by the High Court below “Note for speaking to the Minutes” in
First Appeal No. 466 of 2010 as well as the order passed in Civil
Application No. 1698 of 2015 in First Appeal No. 466 of 2010, the original
Defendants-Appellants have preferred the present SLP (Civil) Nos.
10093-94 of 2016.  Feeling aggrieved and dissatisfied with the order
passed by the High Court in Writ Petition No.992/2015, the original
Petitioners have preferred the SLP (C) Nos. 15056 of 2016.
7. Shri C.A. Sundaram, learned Senior Advocate and Shri Shyam
Divan, learned Senior Advocate have appeared on behalf of the
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respective Appellants in respective Appeals and Shri Neeraj Kishan Kaul,
learned Senior Advocate, Shri P.S. Patwalia, learned Senior Advocate
and Shri R.P. Bhatt, learned Senior Advocate have appeared on behalf
of the contesting Respondents-original Plaintiffs.  Shri Pallav Shishodia,
learned senior counsel has also appeared on behalf of the Respondent,
Municipal Corporation.
8. Shri C. A. Sundaram, learned Senior Advocate appearing on
behalf of the Appellants-original Private Defendants has vehemently
submitted that the impugned orders are not sustainable at law.
8.1 It is vehemently submitted by learned counsel that the impugned
order dated 23.12.2014 passed in F.A. No. 466 of 2010 on the “Note for
speaking to the Minutes” is wholly unsustainable under the law and is
wholly without jurisdiction.
8.2 It is vehemently submitted by learned counsel that the impugned
order below “Note for speaking to the Minutes”, is, as such, can be said
to be wholly without jurisdiction inasmuch as such order could not have
been passed on the “Note for speaking to the Minutes”.  It is vehemently
submitted by the learned counsel that an application for “Note for
speaking to the Minutes” is required to be entertained only for the limited
purposes of correcting the typographical error or an error through
oversight, which may have crept in while transcribing the original order.
It is submitted that as such, the impugned order on the “Note for speaking
to the Minutes”  is
virtually modifying and/or reviewing the earlier order
passed in First Appeal and, therefore, such an order could not  have
been passed by the High Court on an  application for “Note for speaking
to the Minutes”.  It is submitted that while passing the impugned order,
the High Court has given further directions and, thereby, has virtually
modified the original order.  It is submitted that such a course was not
open to the High Court while deciding the said “Note for speaking to the
Minutes”.  It is submitted that, therefore, the impugned order on “Note
for speaking to the Minutes” is not sustainable at law.  In support of his
above submissions, the learned Senior Advocate has heavily relied upon
the decision of Gujarat High Court in the case of Kotak Mahindra
Bank Ltd. Vs. Official Liquidator of M/s. Gujrat BD Luggage Ltd.
2012 SCC Online Gujrat 4339 as well as the decision of the Division
Bench of the Bombay High Court in the case of the Artson Engineering
Ltd. Vs. Indian Oil Corporation Ltd. 2015 SCC Online Bombay 39.
AKHIL BHARTVARSHIYA MARWARI AGARWAL JATIYA
KOSH v. BRIJLAL TIBREWAL [M. R. SHAH, J.]
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8.3 It is further submitted by learned counsel that such an order
passed on “Note for speaking to the Minutes” is virtually modifying its
earlier judgment and order in Frist Appeal.  It is submitted that as such,
while at the time of deciding and disposing of the First Appeal, a specific
submission was made on behalf of the parties with respect to the area
for which the Deed of Conveyance to be executed and the submission
on behalf of the respective parties were noted and thereafter the High
Court dismissed the appeal without any specific reference whether the
Deed of Conveyance to be executed for the total area of 2700 sq. meters.
It is submitted that, therefore, even if an independent review application
would have been preferred in that case also such an order could not
have been passed, which is passed as such on the “Note for speaking to
the Minutes”, which is not sustainable as submitted hereinabove.
8.4 It is further submitted by learned counsel that even otherwise
the impugned order could not have been passed by the High Court and
that too in the appeal preferred by the appellants more particularly when
the High Court dismissed the appeal preferred by Appellants-original
Private Defendants and confirmed the judgment and decree passed the
learned Trial Court.  It is vehemently submitted that by the impugned
order, as such the High Court has granted the relief which as such was
not
specifically granted by the learned Trial Court while decreeing the
Suit preferred by the original Plaintiffs.  It is submitted that when against
the judgment and decree passed by the learned Trial Court, only the
original Private Defendants preferred the appeal and there was neither
any cross objection preferred by the original Plaintiffs nor any appeal
preferred by the original Plaintiffs, the High Court could not have passed
such order (apart from the fact passing the order on “Note for speaking
to the Minutes”), when the High Court dismissed the appeal.  It is
submitted that at the most the High Court can/could have dismissed the
appeal confirming the judgment and decree passed by the learned Trial
Court.  It is submitted, that by dismissing the appeal preferred by the
Appellants-original Private Defendants and when neither there was any
cross objection nor any appeal preferred by the original Plaintiffs, the
High Court could not have passed any order beyond the judgment and
decree passed by the learned Trial Court.  It is submitted that by passing
the impugned order as such the High Court has granted the relief and
issued directions which is beyond the judgment and decree passed by
the learned Trial Court.  It is submitted that, therefore, thereafter when
the appellants preferred the application to recall the order passed on
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“Note for speaking to the Minutes”, the High Court ought to have recalled
such order.   It is submitted that, however, the High Court has mechanically
rejected the review application.  It is submitted that, therefore, the
impugned orders passed on “Note for speaking to the Minutes”, and the
order passed in review application deserves to be quashed and set aside.
8.5 It is further submitted by the learned counsel that even
otherwise the High Court has committed grave error in passing the
impugned order on “Note for speaking to the Minutes” directing the
Appellants/original Defendants to execute the Deed of Conveyance of
the land to the extent of building i.e. 2700 sq. meters.  It is submitted that
while passing the impugned order and directing the appellants the original
Defendant No. 1 to execute the Deed of Conveyance of the land to the
extent of the building i.e. 2700 sq. meters, the High Court has not at all
considered the fact that as such the built up area of the building (A-1),
even as per the original Plaintiff was admeasuring 1009 sq. meters (1205
sq. yards).
8.6 It is further submitted that as such the built-up area of the
building A-1 was admeasuring 1009 sq. meters even as per the Plan
approved and the Suit was filed only to execute the Deed of Conveyance
to the extent of area of the building.  It is submitted that, therefore, also
the High Court has committed grave error in directing to execute the
Deed of Conveyance to the extent of building
i.e. 2700 sq. meters.
8.7 It is submitted by learned counsel that even otherwise it is not
appreciable how the High Court has arrived at the figure of 2700 sq.
meters.  It is submitted that even that was not the case on behalf of the
plaintiffs.
8.8 It is further submitted by the learned counsel that even the
averments made in the Plaint, the Plaintiffs so stated in paragraph 18,
that the total built-up area of building of A-1 is around 1205 sq. yards
(wrongly stated as 1205 sq. meters).  It is submitted that in paragraph 18
the Plaintiffs specifically stated and it was the specific case that original
Plaintiffs and/or the Society to be formed by the flat purchasers are
entitled to an area of land corresponding to the built-up area of the building
so constructed on such land utilizing the FSI permissible at the relevant
time.  It is submitted that it was specifically stated in paragraph 18 in the
Plaint that the Plaintiffs are entitled to a minimum plot area of around
1205 sq. yards (wrongly stated as 1205 sq. meters) or thereabout.  It is
submitted that, therefore, the impugned orders passed by the High Court
AKHIL BHARTVARSHIYA MARWARI AGARWAL JATIYA
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directing to execute the Deed of Conveyance to the extent of 2700 sq.
meters is beyond even the case on behalf of the Plaintiffs so pleaded in
the Plaint.
8.9 Taking us to the reply filed on behalf of the Municipal
Corporation, it is vehemently submitted by learned counsel that even
according to the Corporation as per approved layout plan, CTS No. 97/
A-5/2 on which building A-1 on the total area of 1009 sq.meters was
constructed was total measuring 2593.70 sq. meters.  It is submitted,
therefore, in any case, how the High Court has arrived at the figure of
2700 sq. meters is not at all appreciable.  It is submitted that when the
entire plot bearing CTS No. 97/A-5/2, as per the approved layout plan
was of 2593.70 sq. meters on which building A-1 was constructed
admeasuring 1009 sq. meters, there is no question of executing the Deed
of Conveyance more than that more particularly 2700 sq. meters as
directed by the High Court while passing the impugned order on “Note
for speaking to the Minutes”.
8.10 It is further submitted by the learned counsel that even while
passing the decree and allowing the Suit, the learned Trial Court
specifically directed the original Defendant No. 1 to convey the title and
execute documents in favour of the Society in respect of the Suit building
and the land to the extent of Suit building as shown in the Plans i.e. 1009
sq. meters.  It is submitted, therefore,
while dismissing the appeal preferred
by the Appellants, the High Court could not have passed any order beyond
the decree passed by the learned Trial Court, more particularly, when
the original Plaintiffs neither filed any cross objection nor preferred any
appeal.
8.11 It is further submitted by learned counsel that even the original
Private Defendants used the FSI corresponding to the built-up area of
the building A-1 i.e. 1009 sq. meters.  It is further submitted that what
was sold/sought to be conveyed to the original Plaintiffs/Occupiers was
the building A-1 admeasuring 1009 sq. meters only.  It is submitted,
therefore, that they could not have sought any relief beyond the area
admeasuring 1009 sq. meters.  It is submitted, therefore, as such they
rightly averred in the Plaint that they are entitled to the Deed of
Conveyance to the extent of the land of the building i.e. 1009 sq. meters.
It is submitted, therefore, even the learned Trial Court also while passing
the Decree directed to execute the Deed of Conveyance accordingly.
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8.12 The learned counsel appearing on behalf of the Appellants
have taken us to the layout plans and had submitted that on the plot
bearing CTS No. 97/A-5/2 other three buildings were also to be
constructed over and above building A-1, however, during the pendency
of litigation under the Urban Land Ceiling Act, further construction was
not made.  It is submitted that, therefore, at the most original Plaintiff
shall be entitled for execution of the Deed of Conveyance to the extent
of 1009 sq. meters only, that is the land on which building A-1 was
constructed which was sold to the original Plaintiffs and its Members.
8.13 Making the above submission made by Shri C.A. Sundaram,
learned Senior Advocate appearing on behalf of the Appellant has
requested to allow present Appeals and quash and set aside the impugned
orders passed by the High Court.
9. Shri Shyam Divan, learned Senior Advocate appearing on behalf
of the Appellants in Civil Appeals arising out of the SLP(Civil) No. 15056
of 2016 has reiterated what was submitted by Shri Sundaram, learned
Senior Advocate appearing on behalf of the Appellants in Civil Appeals
arising out of SLP (Civil) Nos.10093-94 of 2016.  He has further submitted
that as such the order passed by the Divisional Registrar directing of
deemed Conveyance of the land to the extent of 2593.70 sq. meters is
as such based upon and relying upon the order passed by the High Court
below the “Note for speaking to the Minutes” (the impugned
order before
this Court).  It is submitted that, therefore, once the impugned order
passed by the High Court passed below the “Note for speaking to the
Minutes” is set aside, as prayed for by the Appellants, the order passed
by the Divisional Registrar confirmed by the High Court would
automatically go.  It is submitted that even otherwise, even on merits
also the order passed by the Divisional Registrar of deemed Conveyance
of the land to the extent of 2593.70 sq. meters is not sustainable and is
actually illegal.  It is submitted that, therefore, the High Court ought to
have allowed the writ petition preferred by the appellants.
9.1  Making above submission it is requested to allow the present
appeals and quash and set aside the order passed by the High Court
dismissing the Writ Petition confirming the order of deemed Conveyance
of the land to the extent of 2593.70 sq. meters passed by the Divisional
Registrar.
AKHIL BHARTVARSHIYA MARWARI AGARWAL JATIYA
KOSH v. BRIJLAL TIBREWAL [M. R. SHAH, J.]
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10. All these appeals are vehemently opposed by Shri Neeraj
Kishan Kaul, learned Senior Advocate, Shri P.S. Patwalia, learned Senior
Advocate and Shri R.P. Bhatt, learned Senior Advocate appearing on
behalf of the original Plaintiffs.
10.1 Learned counsel appearing on behalf of the original Plaintiffs
have vehemently submitted that, in the facts and circumstances of the
case, no error has been committed by the High Court in passing the
impugned order on “Note for speaking to the Minutes”.  It is vehemently
submitted by learned counsel appearing on behalf the original Plaintiffs
that when it was pointed out to the High Court that while disposing of
the appeal, though there was specific observation in paragraphs 8 and 9
that the Deed of Conveyance is to be executed for 2700 sq. meters,
while passing the operative portion of the order there was no specific
reference to the area of the land and, therefore, when the same was
pointed out by submitting “Note for speaking to the Minutes”, the same
is rightly corrected by the High Court by passing the impugned order.  It
is submitted that the impugned order on the “Note for speaking to the
Minutes”, as such can neither be said to be either wholly without
jurisdiction as contended on behalf of the Appellants nor it can be said to
be an order reviewing/modifying earlier order passed in First Appeal.
10.2 It is vehemently submitted by learned
counsel for the original
Plaintiffs that even in the prayer clause in the Suit, in paragraph 37(vi), it
was prayed to direct the original Defendant No. 1 to convey the said
building A-1 together with the plot of land J-1.  It is submitted that the
building A-1 might have been constructed on the land admeasuring 1009
sq. meters, however, the entire plot was admeasuring 2593.70 sq. meters.
It is submitted that, therefore, the Suit was for 2593.70 sq. meters of
land.  It is submitted that even the Defendants’ witness-DW-1-
Omprakash Didwanja in his cross-examination specifically admitted that
the Suit building has been constructed on the plot of land admeasuring
2573.31 sq. meters. It is submitted that, therefore, the High Court has
not committed any error in directing the Appellant-original Defendant
No. 1, to execute the deed of Conveyance of the land to the extent of
the plot area.   However, the learned counsel appearing on behalf of the
original Plaintiffs are not in a position to satisfy how the High Court has
arrived at the figure of 2700 sq. meters of the land for which the
Defendant No. 1 is directed to execute the Deed of Conveyance.  It is
submitted that, in any case, the original Defendant No. 1 is required to
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execute the Deed of Conveyance of the land total admeasuring 2593.70
sq. meters which is the area of the plot.
10.3 It is further submitted by learned counsel that, as such, the
original Defendants constructed the building A-1 only and it is an admitted
position that, thereafter, no construction has been made on the remaining
land of the plot.  It is submitted that even the original Defendant No. 1
used the FSI of the total area of the plot.  It is submitted that, therefore,
the original Defendant No. 1 has to execute the Deed of Conveyance of
the land to the extent of at least 2593.31 sq. meters.  It is submitted that
even the Divisional Registrar also, not only on the basis of the order
passed by the High Court impugned in the present appeals, even on
considering the materials on record, passed an order of deemed
Conveyance of the land to the extent of 2593.31 sq. meters.
10.4 Making above submissions and relying upon the layout plans
sanctioned by the Corporation, it is requested to dismiss the present
appeals. The learned Senior Advocate appearing on behalf of the original
Plaintiffs has submitted that even by the impugned orders the High Court
has passed in favour of the Appellants herein to the extent allowing the
additional FSI.
11. Heard the learned counsel appearing on behalf of the respective
parties at length.  We have also gone through the impugned order passed
by the High Court passed below the “Note for speaking to the Minutes”.
While
passing the impugned order, the High Court has directed the
Appellants herein to execute the Deed of Conveyance of the land to the
extent of the building i.e. 2700 sq. meters in favour of the original Plaintiffs
and/or the Society.  It is also required to be noted that while passing the
impugned order in Civil Application No.1698 of 2015 in First Appeal
No.466 of 2010, in which it was requested by the Appellants herein to
modify the order dated 23.12.2014 passed below the “Note for speaking
to the Minutes”, the High Court has even further clarified that the
Appellants herein are entitled to consume balance FSI of plot of land.
Therefore, in short, the orders passed by the High Court passed below
“Note for speaking to the Minutes” in First Appeal No.466 of 2010 and
the order passed in Civil Application No.1698 of 2015 in First Appeal
No.466 of 2010 are impugned in the present appeals.  Therefore, the
short question posed for the consideration of this Court is whether such
an order/orders could have been passed by the High Court below the
“Note for speaking to the Minutes”?
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12. Having heard the learned counsel for the respective parties
and considering the impugned order passed by the High Court passed
below the “Note for speaking to the Minutes”, we are of the opinion that
while passing such order below the “Note for speaking to the Minutes”,
the High Court has travelled beyond its jurisdiction in regard to the scope
of deciding a “Note for speaking to the Minutes”.  A “Note for speaking
to Minutes” is required to be entertained only for the limited purpose of
correcting a typographical error or an error through oversight, which
may have crept in while transcribing the original order.  Once, the
judgment/order is pronounced and if any party to the same wants any
rectification of any typographical error and any clerical mistake regarding
the date or number, such a party may apply to the concerned Court for
correcting such an error in the judgment/order.  However, a “Note for
speaking to the Minutes” cannot be considered at par with a review
application or in a given case, with an application for clarification/
modification of an order.  A “Note for speaking to the Minutes” can
never be considered to be an application of such a nature.  While passing
the impugned order below the “Note for speaking to the Minutes”, the
High Court has virtually modified its original order passed in First Appeal.
While passing the impugned order, the High Court has given
further
directions as if the High Court is passing the order on an application for
clarification/modification.  Therefore, such a course was not open to the
High Court while deciding a “Note for speaking to the Minutes”.  Since,
the High Court has travelled beyond its jurisdiction in regard to the scope
of deciding a “Note for speaking to the Minutes”, we have no option but
to set aside the impugned order passed below the “Note for speaking to
the Minutes”.
12.1 Even otherwise, the impugned orders are not sustainable at
law.  It is required to be noted that it was the Appeal before the High
Court, preferred by the Appellants herein–original Defendants, challenging
the judgment and decree passed by the learned Trial Court, by which the
learned Trial Court specifically passed a decree directing the only
Defendant No.1 to convey the title and execute  document in favour of
the Society in respect of Suit Building and land to the extent of Suit
Building.  The Suit Building, from the material on record, it is emerging
that the area of the building was 1009.70 sq. meters.  Against that judgment
and decree, original Private Defendants-Appellants were before the High
Court.  The Trial Court never passed any decree directing the Appellants
to execute the Deed of Conveyance to the extent of 2700 sq. meters of
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land.  Therefore, while dismissing the appeal, even otherwise, the High
Court could not have passed any further order beyond the judgment and
decree passed by the Trial Court and that too in absence of any cross
objection and/or cross appeal preferred by the original Plaintiffs.  In an
Appeal preferred by the original Defendants, as observed above, at the
most, the High Court can dismiss the Appeal and confirm the judgment
and decree.  However, the Appellants-original Defendants cannot be
put in a worse condition than beyond the judgment and decree passed by
learned Trial Court which was appealed before the First Appellant Court
and that too in the absence of any cross-appeal or cross objection by the
original Plaintiffs.   Therefore also, the impugned orders passed by the
High Court which, as such, will go beyond the judgment and decree
passed by the learned Trial Court are not sustainable, more particularly,
in absence of any cross-appeal and/or order the cross objection by the
original Plaintiffs.  Once the High Court has dismissed the Appeal
preferred by the Appellants-original Defendants, in that case, in an appeal
preferred by the original Defendant, the High Court could not have passed
any further order beyond the judgment and decree passed by the learned
Trial Court appealed.  Thus, by passing the impugned order, it can be
said that the High Court has passed order beyond the scope and ambit
of the Appeal before it and has exceeded in its
jurisdiction not vested in
it.
12.2 Even otherwise, it is not appreciable how the High Court has
arrived at the figure of 2700 sq. meters.  It appears from the material on
record that it was never the case on behalf of the original Plaintiffs that
the original Defendant No.1 shall execute the Deed of Conveyance of
the land to the extent of 2700 sq. meters.  Even considering the map
sanctioned by the Corporation and even considering the reply filed by
the Corporation before this Court, it appears that the total plot area of
CTS No. 97/A-5/2 on which the building A-1 was constructed, was
2593.70 sq. meters, out of which there was a construction of building A-
1 on the land admeasuring 1009.70 sq. meters.  Therefore also, the
impugned order passed by the High Court directing the Appellants herein-
original Defendant No.1 to execute the Deed of Conveyance in respect
of the land to the extent of 2700 sq. meters is not sustainable.
12.3 Even otherwise, it is required to be noted that in the Plaint/
Suit before the Trial Court it was specifically averred by the Plaintiffs
that:
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i) Building occupies by the Plaintiffs are consisting of ground plus
four storeys and the total built-up area is 1205 sq. meters;
ii) That under the provisions of law, the Plaintiffs and/or the Society
to be formed by the flat purchasers are entitled to an area of land
corresponding to the built-up area of the building so constructed
on such land utilizing the FSI permissible at the relevant time;
iii) The Plaintiffs are entitled to a minimum plot are of around
1205 sq. yards.
It cannot be disputed that the building A-1 was constructed on the
land admeasuring 1205 sq. yards-1009.70 sq. meters and that was
the total built-up area of building A-1 which was occupied by the
Plaintiffs.
The Plaintiffs, therefore, cannot go beyond the averments and
pleadings in the Plaint.  Therefore, the Plaintiffs could not have
even asked for the execution of the Deed of Conveyance in respect
of the land beyond the built-up area of building A-1, more
particularly, when the Allottees/original Plaintiffs can claim the
rights with respect the building A-1 only.
12.4 The learned counsel appearing on behalf of the original
Plaintiffs have heavily relied upon the cross-examination of DW-1
Omprakash Didwanja and have submitted that the Defendants’ witness
specifically admitted that the Suit building has been constructed on the
plot of the land admeasuring 2573.31 sq. meters and, therefore, the
Plaintiffs were
entitled to the Deed of Conveyance with respect to the
entire plot of land 2573.31 sq. meters.  The same has no substance.
There is a difference and distinction between the built-up area of building
and the plot area. As observed above, the Plaintiff specifically averred
and pleaded in paragraphs 18 that they are entitled to an area of land
corresponding to the built-up area of the building so constructed on such
land.  Therefore also, the High Court is not justified in directing Defendant
No.1 to execute the Deed of Conveyance with respect to the land
admeasuring to the extent of 2700 sq.meters.
12.5 In view of the above and for the reasons stated above, the
impugned orders passed by the High Court dated 23.12.14 passed below
“Note for speaking to the Minutes”, in First Appeal No.466/2010 and
the order dated 04.07.15 passed in Civil Application No.1698/2015 in
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First Appeal No.466/2010 deserve to be quashed and set aside and the
Civil Appeals arising out of the said orders are required to be allowed.
13. So far as the Appeals arising out of the impugned judgment
and order passed by the High Court dated 10.09.2015  in WP© No.992/
2015 is concerned, it appears that the Divisional Registrar of the Co-
operative Societies has passed an order of deemed Conveyance of the
area admeasuring 2593.70 sq. meters, which was the subject matter in
the Writ Petition before the High Court and the High Court by impugned
judgment and order has dismissed the Writ Petition confirming the order
passed by the Divisional Registrar granting deemed Conveyance of the
area admeasuring 2593.70 sq.meters.
13.1 Having heard the learned counsel for the respective parties
and considering the order passed by the Divisional Registrar of deemed
Conveyance of the area admeasuring 2593.70 sq.meters, it appears that
the Divisional Registrar considered the orders passed by the High Court
below  “Note for speaking to the Minutes”’ in the First Appeal as well as
solely relying upon the property card.   However, as observed hereinabove,
while deciding the Appeals arising out of the order passed by the High
Court below “Note for speaking to the Minutes”, the original Plaintiff-
Society shall not be entitled to the Deed of Conveyance to the extent of
area admeasuring 2700 sq.meters and/or even 2593.70 sq.meters and
they shall be entitled to the Deed of
Conveyance of the area admeasuring
1009.70 sq.meters which was the built up area of building A-1 and,
therefore, for the reasons stated hereinabove, the impugned judgment
and order passed by the High Court dated 10.09.2015 in Writ Petition ©
No.992/2015 confirming the order passed by the Divisional Registrar
Co-operative Societies of deemed Conveyance of the area admeasuring
2593.70 sq.meters also deserves to be quashed and set aside and the
Appeals arising out of the impugned orders passed by the High Court in
W.P. No. 992 of 2015 deserves to be allowed.
14. In view of the above and for the reasons stated above, all
these appeals succeed and are hereby allowed.  The impugned orders
dated 23.12.2014 passed by the High Court of Bombay passed below
“Note for speaking to the Minutes” in First Appeal No.466/2010 as well
as the impugned order dated 04.07.2015 passed by the High Court of
Bombay in Civil Application No.1698 of 2015 in First Appeal No.466/
2010 are hereby quashed and set aside.
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KOSH v. BRIJLAL TIBREWAL [M. R. SHAH, J.]
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15. The impugned judgment and order passed by the High Court
of Bombay dated 10.04.2015 in Writ Petition (C) No.992/2015 confirming
the order passed by the Divisional Registrar of   the  Co-operative Societies
of deemed Conveyance of the area admeasuring 2593.70 sq.meters is
also hereby quashed and set aside and consequently the order passed by
the Divisional Registrar of Deemed Conveyance of the area admeasuring
2593.70 sq.meters is hereby quashed and set aside and it is directed and
the same is modified to the extent of granting deemed Conveyance of
the area admeasuring 1009.70 sq.meters only.  The Appeals stand disposed
of accordingly.
16. In the facts and circumstances of the cases, there will be no
order as to costs.   In view of the disposal of the Appeals, the Contempt
Petitions as well as the interlocutory application pending, if any, shall
also stand disposed of.
Divya Pandey
Matters disposed of.