Supreme Court - Daily Orders
Idbi Bank Limited vs Tulsidas V.Patel P.Ltd.. on 7 January, 2015
Bench: T.S. Thakur, Adarsh Kumar Goel
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.(S). 93 OF 2015
(Arising out of S.L.P.(C) No.18050 of 2012)
IDBI BANK LIMITED Appellant(s)
VERSUS
TULSIDAS V.PATEL P.LTD.& ORS. Respondent(s)
O R D E R
Leave granted.
This appeal arises out of an order dated 11 th October, 2011 passed by the High Court of Judicature at Bombay whereby W.P.No.2212 of 2010 filed by the petitioner-Bank has been dismissed thereby affirming order dated 30th January, 2010 passed by Bombay City Civil Court in Chamber Summons No.524 of 2009.
It is in our opinion unnecessary to set out the factual matrix of the case at length in view of the fact that learned counsel for the parties have agreed to the disposal of this appeal with a certain clarification to which we shall presently advert. All that we need say is that Long Cause Suit No.2184 of 1990 filed by respondent no.1-Company before the Bombay City Civil Court was Signature Not Verified Digitally signed by Mahabir Singh decreed Date: 2015.01.13 16:44:03 IST ex-parte on 11th June, 2007 against the Reason: appellant-Bank and in favour of the plaintiff in terms of prayer (a) of the plaint which was in the following words: 2
“(a) that the 1st Defendants be restrained permanently by an Order and injunction of this Honourable Court from transferring the building proposal submitted by the Plaintiffs for construction of the building 'B' Tower (Rear Tower) or Mahendra Tower or the plot of land abutting on Bomanji Petit road bearing C.S. No.609, Malabar Hill, Cumballa Hill, Bombay-400026 and approved by the Ist Defendants by their letter dated 4th January, 1973 to the name of the 2nd Defendants herein and/or accepting or approving any building proposal in the name of the 2nd Defendants and/or from permitting the 2nd Defendants from carrying on any Construction work on the above mentioned suit premises on their own without written consent of the plaintiffs herein.” Aggrieved by the ex-parte decree, the appellant-bank appears to have moved an application (Notice of Motion No.1272 of 2008) for setting aside the said decree along with an application (Chamber Summons No.524 of 2009) seeking condonation of delay in the making of that application. The chamber summons was declined by the trial court who took the view that no cogent explanation was forthcoming for the delay in the making of application for setting aside of the ex-parte decree. Aggrieved by 3 the said order of the trial court, the appellant filed W.P. No.2212 of 2010 which petition has been, as noticed earlier, dismissed by the High Court in the process affirming the order passed by the trial court. The net result is that the ex-parte decree passed by the trial court in Long Cause Suit No.2184 of 1990 stands affirmed and the appellant as also the defendant-Municipal Corporation of Greater Bombay stand restrained in terms of prayer (a), extracted above.
Mr. A.S. Chandhioke, learned senior counsel appearing for the appellant-bank submitted that the appellant-Bank will be satisfied in case it is clarified that the ex-parte decree passed by the trial court granting an injunction in terms of prayer (a) (supra), shall remain subject to the outcome of O.S.No.890 of 2010 filed by the appellant-bank for specific performance of an agreement executed between the appellant-bank and the defendants which suit is presently pending in the Bombay High Court. It was submitted by Mr. Chandhioke that if the suit for specific performance, filed by the appellant-bank, is eventually decreed and the defendants in the said suit held bound to honour the agreement and the contractual obligations, arising from the same, the decree for 4 injunction passed by the Bombay City Civil Court in Long Cause Suit No.2184 of 1990 will come in conflict with any such decree unless this Court clarifies that the ex-parte decree passed shall remain subject to the outcome of the suit for specific performance filed by the appellant-bank.
Mr. Shyam Divan, learned senior counsel appearing for respondent no.1-company, upon instructions, submits that the clarification prayed for by the appellant can be granted and the appeal disposed of without otherwise interfering with the decree.
In the circumstances, therefore, and without going into the merits of the case or the contentions urged before the courts below regarding the sufficiency of the explanation for the delay or the correctness of the orders refusing to set aside the decree, we direct, with the consent of the parties, that the decree passed by the Bombay City Civil Court in Long Cause Suit NO.2184 of 1990 shall remain subject to the outcome of Civil Suit No.890 of 2010 filed by the appellant-bank and presently pending before the High Court of Judicature at Bombay. 5 This appeal is on the above terms disposed of leaving the parties to bear their own costs.
.........................J. (T.S. THAKUR) .........................J. (ADARSH KUMAR GOEL) NEW DELHI DATED 7th JANUARY, 2015 6 ITEM NO.32 COURT NO.2 SECTION IX S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) No(s). 18050/2012 (Arising out of impugned final judgment and order dated 11/10/2011 in WP No. 2212/2010 passed by the High Court Of Bombay) IDBI BANK LIMITED Petitioner(s) VERSUS TULSIDAS V.PATEL P.LTD.& ORS. Respondent(s) (With interim relief and office report) Date : 07/01/2015 This petition was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE T.S. THAKUR HON'BLE MR. JUSTICE ADARSH KUMAR GOEL For Petitioner(s) Mr. A.S. Chandhioke,Sr.Adv.
Mr. Sanjay Bhatt,Adv.
Mr. Dushyant,Adv.
Ms. Monik Tyagi,Adv.
Mr. Rabin Majumder,Adv.
For Respondent(s) Mr. Shyam Divan,Sr.Adv.
Mr. Abhinav Agrawal,Adv.
Mr. Mahesh Agarwal,Adv.
Mr. E. C. Agrawala,Adv.
Mr. Rajesh Kumar,Adv.
Mr. J.J. Xavier,Adv.
Mr. Bhargava V. Desai,Adv.
UPON hearing the counsel the Court made the following O R D E R Heard.
Leave granted.
In terms of the signed order, this appeal is disposed of:
“In the circumstances, therefore, and without going into the merits of the case or the contentions urged before the courts below 7 regarding the sufficiency of the explanation for the delay or the correctness of the orders refusing to set aside the decree, we direct, with the consent of the parties, that the decree passed by the Bombay City Civil Court in Long Cause Suit NO.2184 of 1990 shall remain subject to the outcome of Civil Suit No.890 of 2010 filed by the appellant-bank and presently pending before the High Court of Judicature at Bombay.
This appeal is on the above terms disposed of leaving the parties to bear their own costs.” (MAHABIR SINGH) (VEENA KHERA) COURT MASTER COURT MASTER (Signed order is placed on the file)