B C Jhaveri v. Vishakha Vilas Jalgaonkar And 19 ORS

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL (L) NO.131 OF 2016 B.C. Jhaveri ..... Appellant V/s Vishakha Vilas Jalgaonkar & Ors.

..... Respondents WITH NOTICE OF MOTION (L) NO.1290 OF 2016 IN APPEAL (L) NO.131 OF 2016 B.C. Jhaveri ..... Applicant

IN THE MATTER BETWEEN

B.C. Jhaveri ..... Appellant V/s Vishakha Vilas Jalgaonkar & Ors.

..... Respondents Mr. Ganraj Shah a/w Mr. Paresh J. Gada i/b M/s Dhanuka & Partners for the Applicant/Appellant.

Mr. Rajesh Kachare a/w Mr. Amit Potnis i/b M/s. Tamhane & Co. for the Respondent Nos.1 to 4 and 16 to 19.

Mr. Ravi Kadam i/b M/s. Bagkar & Co. for the Respondent No.14. Mr. Sandip Parikh & Mr. Amit Pradhan i/b M/s. Subhash Pradhan & Co. for the Respondent No.15.

CORAM : A.S. OKA & A.A. SAYED, JJ.

DATED : 08 AUGUST 2016 ORDER:

Not on Board. Taken on Board.

By this Notice of Motion, the Applicant is seeking leave to prefer an Appeal against the order dated 23 February 2015 passed by the learned 1/3

2/3 Single Judge in Suit No.3195 of 1991. The order dated 23 February 2015 which is sought to be impugned by the Applicant reads thus: "1.

There shall be an order and decree in terms of the Consent Terms signed by the parties and their Advocates. The undertakings, if any, are accepted. Clause 26 of the Consent Terms relates to the plaintiff in Suit No.3015 of 1996. The plaintiff in that suit is not a party to this Consent Terms and hence not bound by the Consent Terms. The Consent Terms are taken on record subject to the above clarification and marked X. The Suit is disposed of in terms of the Consent Terms for the property which is mentioned in the Consent Terms. The plaintiffs shall have liberty to file separate suit in respect of the other properties. 2.

S. O. to 02.03.2015."

(underline supplied) The Applicant is the Plaintiff in Suit No.3015 of 1996. The submission of the learned Counsel appearing for the Applicant is that the rights of the Applicant under the Memorandum of Understanding dated 16 October 1990 executed by the Defendant in Suit No.3015 of 1996 filed by the Applicant will be considerably diluted by virtue of the Consent Terms. He also pointed out the clauses in the Memorandum of Understanding. He pointed out the relevant clauses in the Consent Terms filed on the basis of which the impugned order has been passed. In the impugned order, the learned Single Judge has specifically observed that the present Applicant (the Plaintiff in Suit No.3015 of 1996) 2/3

3/3 is not a party to the Consent Terms filed in Suit No.3195 of 1991 and hence, the Applicant is not bound by the Consent Terms. It follows that the Applicant is not bound by the consent Decree which is passed on the basis of the Consent Terms. Therefore, the rights of the Applicant are not affected in any manner by the impugned order dated 23 February 2015. Hence, the Applicant is not entitled to seek a leave to prefer an Appeal against the said order. In addition, the impugned order may not a judgment within the meaning of clause 12 of the Letters Patent Act. Accordingly, subject to what is observed above, the prayer for grant of leave to prefer an Appeal is dismissed. The Notice of Motion is accordingly, disposed of.

(A.A. SAYED, J.) (A.S. OKA, J.) katkam 3/3