Dismissed

Smt. Bharati Jinendrakumar Diwakar and Vivek J. Diwakar v. Kalpana Kapurchand Barlota

Bombay HC5 Aug 2013APP/288/2013

Case brief

AI extract

What is this about?

This appeal concerned the recording of compromise terms in specific performance and declaratory suits. The Court upheld the Single Judge’s order referring the dispute on final settlement to trial under Order 23 Rule 3 CPC, noting inconsistencies in the parties conduct following the signed consent terms.

What did the court decide?

No order as to costs. The appeal was dismissed upholding the necessity to decide the final settlement by evidence.

Smt. Bharati Jinendrakumar Diwakar and Vivek… — Contract and Commercial Disputes | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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APPEAL NO. 288 OF 2013 IN NOTICE OF MOTION NO. 1340 OF 2011 IN SUIT NO. 2469 OF 1997

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Smt.Bharati Jinendrakumar Diwakar and another.

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... Appellants.

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V/s. Mrs.Kalpana Kapurchand Barlota. ... Respondent.

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Swapnil Bangur i/b. Yatin R. Shah for the Appellants.

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R.P.Ojha for the Respondent.

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CORAM : DR.D.Y.CHANDRACHUD, AND S.C GUPTE JJ.

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5^th August 2013.

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P.C. :

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The order of the learned Single Judge dated 20 March 2013 has been passed on two notices of motion: (i) Notice of Motion No.1087/2012 which was taken out by the Appellants in their suit¹ for the consent terms to be taken on record; and (ii) Notice of Motion No.1340/2011 taken out by the respondent in her suit² for restoration of the suit to file.

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1 Suit No.721/1996

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2 Suit No.2469/1997

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Two suits have been instituted in this Court on the Original Side. The first suit is a suit which has been instituted by the Appellants for specific performance of an agreement in respect of a residential flat. The second suit by the Respondent is for a declaration that the agreement is void. The Appellants and the Respondent are cousins. On 13 November 2009, consent terms were signed by the parties and their advocates. On 23 November 2009, the advocate for the Appellants circulated a praecipe for withdrawal of the suit instituted by the Appellants on the ground that the parties have filed minutes of consent and the dispute has been settled out of Court. On 24 November 2009, the learned single Judge passed an order in the presence of the parties' advocates by which the suit of the Appellants was removed from the caption of withdrawal and liberty was given to the parties to apply. On 3 December 2009, a praecipe was moved by the advocate for the Appellants for taking the minutes of consent on record stating that the parties have settled out of Court. On 5 December 2009, the learned Single Judge by consent stood over the proceedings to 11 December 2009. On 11 December 2009, the suit appeared under the caption of withdrawal when it was directed to be removed from the board with liberty to apply after the final settlement was arrived at. It appears that on 14 December 2009, the suit instituted by the Respondent was dismissed in default.

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In the meantime, there were certain proceedings before this Court in a petition which had been filed by the occupant of the

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premises. That writ petition¹ came up before a learned Single Judge on 21 March 2011 when the Court was informed that the parties have settled the dispute amicably in pursuance whereof the petition was allowed to be withdrawn. A civil application taken out by the Respondent in the pending writ petition was also disposed of as withdrawn on the same date.

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In this background, two notices of motion were taken out in the two suits. The Appellants took out a notice of motion in their suit for specific performance praying that the consent terms should be taken on record. The Respondent took out a motion in her declaratory suit for restoration of the suit.

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The learned Single Judge by the impugned order dated 20 March 2013 came to the conclusion that it would not be proper to simply accept the consent terms as recording the final agreement between the parties merely because they were admittedly signed. The learned Single Judge noted that though the consent terms were signed on 13 November 2009 the parties had not applied for or obtained an order and decree in terms of the consent terms. No overt act of the Respondent showing that she had acted on the consent terms was shown. In these circumstances, the suit filed by the Respondent was restored to file. The Appellants were directed to lead oral evidence of the final agreement that was arrived at between the parties under the consent terms dated 13 November 2009 and the motion of the Appellants was adjourned for recording evidence. An issue was framed in the following terms:

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1 Civil Writ Petition No.7716/2013

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“Whether the parties finally agreed as per the Consent Terms dated 13^th November, 2009 to settle the suit being Suit No.721 of 1996.”

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The contention of the Appellants in this appeal is that the execution of the consent terms is not in dispute. The learned counsel relies upon an affidavit filed by the Respondent in support of the notice of motion, dated 25 April 2011 in support of the submission that the Respondent admits that the consent terms were prepared and signed by both the parties. Hence it was urged that there was no occasion for the learned Single Judge to frame an issue and direct the parties to lead evidence.

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Order 23 Rule 3 of the Code of Civil Procedure, 1908 provides as follows:

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“WITHDRAWAL AND ADJUSTMENT OF SUITS

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1. ….. ….. ….. ….. ….. ….. …..

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3. Compromise of suit.- Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subjectmatter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit:

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Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be

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granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.

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Under the proviso to Rule 3 where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court has to decide the question.

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In the present case the fact that the parties had signed the consent terms together with their advocates is not in dispute. However, the contemporaneous record would indicate that after the consent terms were signed on 13 November 2009, the learned Single Judge was moved on a praecipe for withdrawal of the suit of the Appellants on two occasions. On 24 November 2009, the learned Judge removed the suit from the caption of withdrawal by giving liberty to the parties to apply. On 11 December 2009, the suit was once again removed from the board and the order of the learned Single Judge reads as follows:

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“Removed from board. Liberty to apply after final settlement is arrived at.”

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In the meantime, another praecipe had been filed on 3 December 2011 by the advocate for the Appellants. It appears that despite this praecipe, the suit was removed from the caption of withdrawal. In fact, the order dated 11 December 2009 would indicate that the Court was informed that the final settlement between the parties was still to take place.

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Now, in this background in her affidavit dated 25 April 2011 in support of her motion, the Respondent specifically does accept the contention that the consent terms were signed by both the parties. However, according to the Respondent, a writ petition was pending in this Court which had been filed by one Mr.Premprakash Shantilal Jain. The Respondent's averment is that after the settlement took place in those proceedings and the petition was withdrawn a final negotiation took place between the Appellants and the Respondent on 30 March 2011 when the Appellants stated that the matter cannot be settled and the Respondent was informed that her suit has been dismissed in the meantime. The Respondent has furnished her explanation, stating that she had instructed her advocate to withdraw her suit but since the dispute could not be settled, she had instructed her advocate not to apply for withdrawal. However, the advocate did not remain present before the Court and the suit was dismissed on 14 December 2009. In this background, the learned Single Judge has framed an issue on whether the parties had finally agreed as per the consent terms dated 13 November 2009 to settle the suit. The learned Single Judge was, in our view, justified in holding that having regard to the background of the proceedings which had taken place between the parties this was not a matter in which the consent terms could be simply taken on record for the disposal of the suit. The proviso to Rule 3 of Order 23 requires the Court to decide where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at. In that jurisdiction, the learned Single Judge was justified in issuing a direction for evidence to be adduced on the issue which has been framed. In the meantime, the learned Single Judge has restored the suit which

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was filed by the Respondent and which was dismissed in default. In the circumstances which have been narrated earlier, the motion which has been taken out by the Appellants for recording the compromise as alleged has been kept pending until a determination is made by the Court under the proviso to Rule 3 of Order 23 of the C.P.C. We find no error in the approach of the learned single Judge.

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The appeal is accordingly dismissed. There shall be no order as to costs.

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(S.C.Gupte, J.)

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S.K.Nanoskar, P.S.

Smt. Bharati Jinendrakumar Diwakar and Vivek J. Diwakar v. Kalpana Kapurchand Barlota

Case brief

What is this about?

What did the court decide?

Smt. Bharati Jinendrakumar Diwakar and Vivek J. Diwakar v. Kalpana Kapurchand Barlota

Case brief

What is this about?

What did the court decide?

What the court decided

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