- (1.)BY this Appeal, the original defendants Nos. 1 to 4 challenge the order passed by the learned Single Judge of this Court in Notice of Motion No. 3194 of 1997 dismissing the said Notice of Motion. That Notice of Motion was taken out by defendants Nos. 1 to 4.
(2.)THE facts that are material and relevant for deciding this appeal are, the present respondents Nos. 1 to 4 filed Civil Suit No. 589 of 1980 principally claiming a decree of declaration that defendant No. 15 by name Khanderao Balkrishna Dandekar is not the signatory to the deed of mortgage dated 23rd August, 1973 and further charges dated 10th September, 1974 executed by the deceased Madhav V. Dandekar and defendant No. 15 in favour of defendants Nos. 1 to 4 creating the mortgage on the suit land are void and ineffective. The plaintiffs also claimed a decree of damages against the defendant No. 5 and defendants Nos. 5-A to 5-E. It may be pointed out here that defendant No. 5 is a partnership firm of which defendants Nos. 5-A to 5-E are the partners. It appears that during the pendency of this suit a consent order was passed by this Court in Notice of Motion No. 620 of 1980. Defendant No. 5 made available to the plaintiffs a flat admeasuring 330 sq. ft. (built up), which is flat No. 305, 3rd Floor, in C-2 Wing, at Yogi Nagar, Eksar, Borivali (West), Mumbai. It appears that there was complaint filed by the plaintiffs against the Advocate appearing for defendants Nos. 1 to 4. That complaint was made to the Bar Council. Ultimately, when that compliant was pending and was being heard by the Bar Council of India, at the intervention of the Board of Disciplinary Committee of the Bar Council of India a settlement was arrived at between the plaintiffs and defendants Nos. 1 to 4. Perusal of the minutes of the Bar Council of India dated 30-6-1995 shows that the Counsel for the plaintiffs filed draft compromise likely to be effected between the parties. In view of this draft compromise, the proceedings in the Bar Council were adjourned. A copy of that draft is at Exh. C to the affidavit filed in support of the Notice of Motion No. 3194 of 1997. It further appears that a meeting of the Disciplinary Committee of the Bar Council of India was held on 6th April, 1996. A compromise was arrived at between the parties for settlement of the suit pending in this Court. The terms of the compromise were recorded in the minutes of the meeting. A copy of those minutes is to be found at Exh. D to the affidavit filed in support of that Notice of Motion. Perusal of those minutes shows that defendants Nos. 1 to 4 agreed to provide to the plaintiffs a flat of an area of 750 sq. ft. (built up) on ownership basis in Borivali area situated up to 3rd floor within a period of six months from the date of the meeting i. e. 6-4-1996. Minutes also provided that the complainant before the Bar Council of India, her mother and brothers will give an indemnity Bond stating that the property in the present suit in so far as they are concerned, is free from all encumbrances and that the title of the said property is clear. It was also agreed that when the plaintiffs receive possession of this flat, they will return flat No. 305-C, which was given by defendants No. 5 to them. It appears that thereafter, the plaintiffs approved flat No. 602, in Wing-I of the Building, at Gokul Nagari at Gokul Residency Building, Samta Nagar, Kandivli (East), Mumbai-400 104. According to defendant Nos. 1 to 4, after the flat was approved by the plaintiffs and the draft agreement for purchase of that flat was also approved, defendants Nos. 1 to 4 paid an amount of Rs. 57,000/- for securing that flat. According to defendants Nos. 1 to 4 there were certain developments in between, therefore, variations in the consent terms were necessary. According to defendants Nos. 1 to 4 they agreed to pay an amount of Rs. 1 lac to the plaintiffs to reimburse the expenses of litigation. On 7-3-1997, according to defendants Nos. 1 to 4 the Advocate appearing for plaintiffs wrote in his own hand the terms of the settlement. According to defendants Nos. 1 to 4 they paid this amount of Rs. 1 lac to the Advocate of the plaintiffs. The hand-written consent terms were then typed out and were filed before the Committee of the Bar-Council on 8th March, 1997. A copy of the hand-written consent terms is at Exh. E to the affidavit filed in support of that motion. Whereas, typed copy is at Exh. F. Perusal of those consent terms shows that defendants Nos. 1 to 4 in terms of the agreement dated 6th April, 1996 were to give a flat admeasuring 750 sq. ft. (built up) to plaintiffs and the plaintiff were to return flat No. 305-C, Yogi Nagar, Borivali (west) on receipt of this flat. Criminal complaints and the complaint to the Bar Council against the defendants Nos. 1 to 4 were to be withdrawn. The parties also agreed to file consent terms in this suit on or before 15th April, 1997. The defendants Nos. 1 to 4 also agreed that if they fail to hand over possession of the flat by 15th April, 1997, they under take to pay damages at the rate of Rs. 25,000/- per month to the plaintiffs. These consent terms were signed on behalf of the plaintiffs by their Advocate Shri Berarwalla and by plaintiff No. 2, who was the complainant before the Bar Council. According to defendants nos. 1 to 4 on 7th April, 1997 the draft of the consent terms was approved by the Advocate for the plaintiffs. A copy of that draft duly approved by the Advocate for the plaintiffs has been annexed to the affidavit filed in support of the Motion at Exh. G shows that the clause in the earlier settlement for payment of Rs. 25,000/- per month, if possession is not given by 15th April, 1997 is deleted, however, the indemnity clause is present. According to defendants Nos. 1 to 4, plaintiff No. 2 signed the agreement for purchase of the flat and the defendants Nos. 1 to 4 made all the necessary payments for securing that flat. According to defendants Nos. 1 to 4 consent terms for being filed before this Court were prepared and they were duly approved by the plaintiffs on 24th April, 1997. According to plaintiffs, after the agreement was signed by the plaintiff No. 2 on 10th April, 1997, the defendants Nos. 1 to 4 have paid all the necessary charges and have obtained possession of the flat and they were ready to deliver possession of the flat to the plaintiffs. According to defendants nos. 1 to 4, thus they were ready to hand over possession of the flat to the plaintiffs by 15th April, 1997. According to defendants Nos. 1 to 4 on 13th April, 1997, Advocate for the plaintiffs confirmed that the consent terms were to be filed before this Court on 23rd April, 1997. It is further stated by defendants Nos. 1 to 4 that it was agreed between the parties that as soon as the consent terms are filed in the Court, possession of the flat would be handed over to the plaintiffs. According to defendants Nos. 1 to 4, the plaintiffs, however, resiled from this compromise and refused to file the same and therefore a statement to that effect was made before this Court on 29th April, 1997.
(3.)DEFENDANTS Nos. 1 to 4, in these circumstance, have taken out Notice of Motion No. 3194 of 1997 for an order from this Court for passing a decree in the suit in terms of the consent terms at Exh. "d", "e" and "g" to the affidavit filed in support of the motion. This Notice of Motion is opposed only by the plaintiffs. So far as defendant No. 5 is concerned, defendant No. 5 does not oppose grant of an order in terms of prayer clauses of the Notice of Motion. It may be pointed out here that on behalf of the Advocate appearing for defendant No. 5, it was stated that some of the partners of defendant no. 5/firm who are joined as defendants Nos. 5-A to 5-D have expired. He, however, stated that in view of the fact that the defendants No. 5 is shown as defendant in the suit, it is not necessary to bring the legal representatives of the deceased partners on record. On behalf of the plaintiffs, it was stated that defendant No. 15 has died during the pendency of these proceedings and that the plaintiffs are the only legal representatives. By order dated 13th February, 1998, the learned Single Judge dismissed the Notice of Motion. Hence, this appeal.