VIJAY KUMAR MEHTA Vs. KHORSHED K AGA

JUDGEMENT

(1.) THIS Notice of Motion has been taken out by defendant No.2 with a prayer for setting aside and/or recalling the consent decree and the consent terms dated 28th April, 1997 passed in Suit No.1761 of 1998. This Notice of Motion has been taken on Board for hearing out of turn on the request of Defendant No.2 on the ground that the property is likely to put in auction tomorrow. In the affidavit in support of the Notice of Motion it is stated that the plaintiffs had filed a suit for specific performance of an agreement for sale dated 30th December, 1992 The suit was settled between the parties and consent terms were filed on 28th April, 1997. Under Clause 2 of the consent terms, the plaintiffs were to be paid a sum of Rs.2,22,50,000/- by Defendant Nos.1 and 2. Under clause 3, Defendant Nos.1 and 2 were liable to pay the aforesaid sum within a period of 12 months from the date of the consent terms. Upon failure to pay the amount simple interest at the rate of 18 per cent per annum was payable. Under clause 7, a charge was created in favour of the plaintiffs in respect of the suit property. It is stated that the aforesaid consent terms were executed under tremendous pressure, undue influence, duress and fraud. It is stated that defendant No.2 was coerced into executing the consent terms which were totally against her interest. It is stated that this can be borne out from the fact that the plaintiffs have to be paid exhorbitant sum as noticed above and also creation of charge in their favour in respect of the suit property. As the suit property could not be sold within the stipulated period of 12 months the plaintiffs have attached not only the suit property but also the personal property of Defendant No.2 being a flat at Juhu where defendant No.2 is presently residing. She, therefore, took out Chamber Summons No.931 of 1998 for raising the attachment. Defendant No.1 also took out two Chamber Summonses for various reliefs. All the Chamber Summonses were clubbed together for hearing and by an order dated 29th August, 1998 passed by Justice D.G.Deshpande. The Chamber Summons of Defendant No.2 was dismissed. Thus the Malbar Hill Bungalow has been ordered to be sold by the Sheriff of Mumbai within two months from the date of the order. In the affidavit in support, defendant No.2 stated that she would be filing an appeal against the aforesaid order. Yet, admittedly no appeal has been filed. Thus obviously the order of Justice Deshpande has become final and binding between the parties. This view of mine is reinforced from another order of this Court passed by Justice Rebello in Chamber Summons No. 444 of 1999. Interestingly this Chamber Summons has been taken out with a prayer that the Sheriff of Bombay be directed to first sell the suit property i.e. Bungalow at 23-G, Doongersey Road, Malbar Hill, pursuant to the consent decree dated 28th April, 1997. A perusal of this order shows that Justice Rebello took note of the findings returned by Justice Deshpande in the order mentioned earlier. A perusal of the order passed by Justice Deshpande on 29th August, 1998 would show that the learned Judge has held that the Court is unable to accept the contentions raised by Defendant No.2. The learned Judge deals with certain other aspects of the matter which may be reproduced in extenso.

(2.) SUBSEQUENTLY Justice Rebello in his order dated 7th April, 1999 notices that no appeal has been preferred against the order of Justice Deshpande. That order, therefore, stands and is binding on all parties. This finding is also not challenged in appeal by any of the parties. Numerous arguments have been raised before me with regard to the maintainability of the Notice of Motion and the particular conduct of Defendant No.2. It would be sufficient to notice that no particulars whatsoever has been given of the fraud or the coercion which has been played by the Advocate for Defendant No.2. Excepting for the bald assertion that there has been a collusion between the plaintiff and Defendant No.2's Advocate, no other allegation whatsoever is made against the plaintiff. It is a matter of record that defendant No.2 issued a certificate of appreciation to the Advocate against whom the allegations are now being made. This certificate is attached as Exhibit-8 to the affidavit of Defendant No.1 dated 30th September, 1998. The certificate is dated May 5, 1997. This letter makes very interesting reading. It is, therefore, reproduced in extenso.

(3.) IN view of the above I find no merit in the Notice of Motion. The same is hereby dismissed with costs.