Oyster Ship Management Private Limited & Ors. v. M/s. Bhavsar Construction Co. Pvt. Ltd. & Ors.

6.17. Now No it has to be examined after excluding the interests of the Developer, the Tenants and the Investors what remains in the hands of the APs as available for forfeiture. As on the date of issuance of the Show Cause Notice, the APs had already passed their rights to third parties i.e. Sunil Jain and Archana Jain of Royal Developers. What is available for forfeiture is the consideration paid and payable to the APs. It is seen that Developers have agreed to hand over 13000 sq ft area to the Central Government. But I do not agree with the same as the Agreement with the APs shows that a Super Built Up Area of 15000 sq ft super built up area is receivable by the APs. In addition they have paid a sum of Rs 20 Lakh and another sum of Rs 10 Lakh is payable to the APs. These are liable liable for forfeiture in the hands of the APs. These are properties derived out of the impugned illegally acquired property proposed for forfeiture. …. …. ”

11 Thus the suit plot, which was originally forfeited vide order dated 22 March 2001 is now protected under order dated 10 October 2018 passed by the Competent Authority in the remanded proceedings only with a view to protect the interest of Plaintiffs and Defendant Nos.[8] to 11. The entitlement of Defendant Nos.[1] to 3 under the JV Agreement both in the form of constructed commercial space admeasuring 15,000 square feet as well as amounts receivable has however been forfeited by the Competent Authority. I am informed that Defendant Nos.[1] to 3 have filed Appeal against the order dated 10 October 2018, which is pending. katkam 10/27

12 In the above background, Plaintiffs and Defendant Nos.[8] to 11 have decided to resolve the disputes amicably, under which Defendant Nos. 8 to 11 have agreed to construct new building and handover the allotted units to the Plaintiffs on terms and conditions more particularly agreed in the Consent Terms. Defendant Nos. 10 and 11 represent Defendant Nos. 8 to 11 in the Consent Terms. Paragraph nos. 1 to 21 of the Consent Terms describe the background in which the Consent Terms are filed. Paragraph nos. 22 to 25 contain the terms agreed by the Plaintiffs and Defendant Nos. 8 to 11 and read thus: “22) The Plaintiffs and the Defendant Nos. 10 and 11 have agreed to the following terms: (a) It is agreed by and between the parties hereto that the said construction will be carried out by the Defendant Nos.10 and 11 under the supervision of the Court Receiver, High Court, Bombay and they would follow all directions and orders passed by this Hon'ble Court from time to time. (b) The parties hereby agree, declare and confirm that the Defendant Nos.10 and 11 shall carry out construction and complete construction of the building and apply for sanction of the plan, NOC, IOD, C.C., O.C. from MMRDA/BMC/MHADA and take into construction all the relevant factors, rules and regulations so as to carry on the construction and complete the construction on the said plot as per the arrangement between the parties as recorded in this Consent Terms.

(c) The Plaintiffs have agreed to give all co-operation, writings, NOC etc. to the Defendant Nos. 10 and 11 and to implement and adopt these Consent Terms for all purposes and intents they shall cooperate with the Defendant No.10 and 11 to complete the project in accordance with the law.

(d) The Defendant Nos. 10 and 11 agree, declare, confirm and undertake to commence construction of new building and undertake the redevelopment of the suit plot provide to the Plaintiffs the respective allotted Units within the period of 60 months after getting all approvals from the date of getting commencement certificate (C.C.) for development on the said plot of land, katkam 11/27 however, in case if the Defendant nos. 10 and 11 cannot finish the construction work then they would get an extension/grace period of 12 months so as to complete the construction on the suit plot. (e) The Defendant Nos. 10 and 11 shall undertake the redevelopment under the supervision of the Court Receiver High Court, Bombay appointed as per order dated 2/12/2010. (f) It is agreed by and between the parties that for getting the possession of respective allotted units the Plaintiffs shall pay a sum of Rs.4500/- per sq. ft. to the Defendant Nos. 10 and 11 which shall be inclusive of the escalation price, construction cost and the balance consideration payable by the Plaintiffs on the basis of allotment letter issued to them. (g) It is agreed by and between the parties hereto that the Plaintiffs in the settlement with Defendant Nos. 10 and 11 agreed by virtue of the present terms of the Consent Terms that the amount due to be paid to M/s. Kiran Jain & Company for providing legal services for the aforesaid litigation to this date will be paid by the Defendant Nos. 10 and 11 as mutually agreed and settled by and between the parties. The Defendant Nos. 10 and 11 agree and undertake to pay the said pending fees to M/s. Kiran Jain & Company on behalf of the Plaintiffs and the Plaintiffs have no objection for Defendant Nos. 10 and 11 directly paying to M/s. Kiran Jain & Company the said fees as may be mutually agreed and settled since the Plaintiffs have resolved their internal disputes and differences. Defendant no.10 and 11 cannot claim this amount from Plaintiff.

23) The parties hereto agree, declare and confirm that the Defendant Nos. 10 and 11 submit to decree on admission in terms of prayer clauses (a) to (f) and (j), (k) & (1) of the Suit.

24) In view of the aforesaid clause with the consent of the Plaintiffs prayer clauses (a) & (b) of the Notice of Motion No. 2381 of 2011 are made absolute so as to enable the Defendant Nos. 10 and 11 to undertake development of the suit property. The said order in terms of prayer clauses (a) & (b) of the said Notice of Motion No. 2381 of 2011 shall continue in execution of decree on admission in terms of prayer clauses (a) to (f) and (h) & (i) and accordingly decree be drawn up. katkam 12/27

25) The Plaintiffs hereto agree that all the interim orders be continued subject to the aforesaid terms and to enable the Defendant Nos. 10 and 11 to complete the construction activities.”

13 Defendant Nos.[1] to 3 on one hand and Defendant Nos.[4] to 6 on the other have raised strong objections to acceptance of Consent Terms tendered by Plaintiffs and Defendant Nos.10 and 11.

14 Mr. Tamboly, the learned counsel appearing for Defendant Nos.[1] to 3 would submit that his clients alone are entitled to carry out development in the suit plot in their capacity as Lessees of MMRDA. That Defendant Nos.[1] to 3 are in fact owners of the suit plot and the plot has been acquired by MMRDA solely for the purpose of its development and the same has been leased out to Defendant Nos.[1] to 3 for fulfilling the objective of carrying out development on the plot. That on account of failure on the part of MMRDA to develop the plot, the objective of acquisition has failed and therefore Defendant Nos.[1] to 3 are in fact entitled to seek restoration of ownership of the suit plot from MMRDA. That Defendant Nos.[8] to 11 have no right to carry out any development on the plot of Defendant Nos.[1] to 3. That the JV Agreement is no longer subsisting. That Plaintiffs cannot enter into Consent Terms and confer any right on Defendant Nos.[8] to 11 behind the back of the original owner and Lessee. That Defendant Nos.[1] to 3 alone can carry out development on the suit plot and/or deal with Plaintiffs. That Defendant Nos.[8] to 11 are not entitled to deal with Plaintiffs directly. katkam 13/27

15 Mr. Tamboly would invite my attention to Notice of Motion No.2381 of 2011 filed by Defendant Nos.[8] to 11 seeking their appointment as agent of Court Receiver for undertaking development and redevelopment of the suit plot. That the said Notice of Motion is still pending and what is sought to be achieved by filing the Consent Terms with Plaintiffs is to secure relief, which is not yet granted by this Court in that Notice of Motion which is pending since the year 2011. That under paragraph 24 of the Consent Terms, Notice of Motion No.2381 of 2011 is sought to be made absolute in terms of prayer clauses (a) and (b) thereof. Mr. Tamboly would therefore submit that the real objective of Defendant Nos.[8] to 11 in filing Consent Terms with Plaintiffs is to secure rights in respect of plot by riding on the shoulders of Plaintiffs who have miniscule amount of interest in respect of vast development potential of the suit plot. That under guise of recognizing rights of Plaintiffs, which are in respect of very small constructed area, Defendant Nos.[8] to 11 are actually attempting to secure the rights in respect of the entire plot by misusing the machinery of the Court. That the Consent Terms would be misused by Defendant Nos.[8] to 11 to represent the world at large that it has acquired rights in respect of the plot. That Defendant Nos.[8] to 11 do not have any authority to seek development permission from planning authority in absence of Consent Terms of the original Lessees. That therefore the office of Court Receiver of this Court would be misused by Defendant Nos.[8] to 11 to secure such permissions bypassing the original Lessees. He would therefore further submit that unless Notice of Motion No.2381 of 2011 filed by Defendant Nos.[8] to 11 for their appointment as agent of katkam 14/27 Court Receiver is decided, Plaintiffs cannot be permitted to settle the suit only with Defendant Nos.[8] to 11. Mr. Tamboly would therefore pray that Defendant Nos.[1] to 3 be permitted to file Reply to Notice of Motion No.2381 of 2011 and unless the Notice of Motion is decided, the Consent Terms be not taken on record or acted upon. Mr. Tamboly would submit that the JV Agreement executed with Defendant No.8 to 11 had already been terminated and would rely upon public notice dated 7 July 2012. He would submit that even otherwise the JV Agreement is an unregistered document creating no right, title or interest in favour of Defendant Nos.[8] to 11 in the suit plot. That the order passed by the Competent Authority, SAFEMA is under challenge and rights of Defendant Nos.[1] to 3 are not defeated in any manner by that order.

16 Mr. Iyer, the learned counsel appearing for Defendant Nos.[4] to 6 would submit that his clients are actually granted development rights in respect of the suit plot and that they are in possession thereof. That Defendant Nos.[4] to 6 have better rights over Defendant Nos.[8] to 11 to develop the suit plot. That the JV Agreement executed in favour of Defendant No.8 to 11 is void and nullity as the same executed on 10 May 2001 after initiation of proceeding by SAFEMA vide a show caused notice dated 10 September 1999. That therefore no rights are created in favour of Defendant Nos.[8] to 11 in respect of the suit plot. That the development potential in respect of the suit plot exceeds 2,30,000 square feet as against ministerial interest of Plaintiffs in respect of area admeasuring katkam 15/27 26,000 square feet. He would therefore submit that Plaintiffs cannot be permitted to settle the suit with Defendant Nos.[8] to 11 thereby defeating the rights of Defendant Nos.[4] to 6.

17 Mr. Kamat, the learned senior advocate appearing for Plaintiffs would submit that Plaintiffs have right to settle the suit against the Defendant of their choice under provisions of Order XXIII, Rule 1 of the Code of Civil Procedure, 1908 (the Code). That Defendant Nos.[1] to 3 or Defendant Nos.[4] to 6 cannot prevent Plaintiffs from compromising the suit against some of the Defendants. That Defendant Nos.[1] to 3 have not even filed a Written Statement in the suit nor have filed Reply to Notice of Motion No.2381 of 2011 filed by Defendant Nos.[8] to 11. That for Plaintiffs, all the Defendant Nos.[1] to 11 are promoters and Plaintiffs believe that Defendant Nos.[8] to 11 are entitled to develop the suit plot and would be in a position handover constructed units to them and therefore Plaintiffs cannot be prevented from compromising the suit with Defendant Nos.[8] to 11. That there is no allegation of any illegality or fraud in the compromise sought to be entered into between Plaintiffs and Defendant Nos.[8] to 11. That the order passed by the Competent Authority and SAFEMA also shows that development of the suit plot is permitted with the objective of protecting the interest of Plaintiffs through Defendant Nos.[8] to 11. Referring to the provisions of Order XL Rule 1 of the Code, Mr. Kamat would submit that it is lawful for this Court to appoint Court Receiver both before as well as after decree. That continuation of Court Receiver in the present case is necessary for the katkam 16/27 purpose of ensuring that the construction is carried out and Plaintiffs secure possession of constructed units as per the Consent Terms.

18 Mr. Jagtiani, the learned senior advocate appearing for Defendant Nos.[8] to 11 would submit that Defendant Nos.[8] to 11 are entitled to carry out development on suit plot by virtue of joint venture agreement dated 10 May 2001. That Defendant Nos.[1] to 3 cannot be made party to the Consent Terms nor can be granted any benefit or amount over and above the one flowing through the joint venture agreement in view of the order passed by the Competent Authority under SAFEMA dated 10 October 2018. That entitlements of Defendant Nos.[1] to 3 under JV agreement have been forfeited by the Competent Authority and therefore it is not lawful for either Plaintiffs or Defendant Nos.[8] to 11 to grant any additional benefits in the form of constructed area or monetary consideration to Defendant Nos.[1] to 3, which would violate the order passed by the Competent Authority. That Defendant Nos.[1] to 3 have rendered themselves incapable of exercising any rights in respect of the suit plot in view of order passed by the Competent Authority. That the JV Agreement executed in favour of Defendant Nos.[8] to 11, which is valid and subsisting and that the same has not been terminated in any manner by Defendant Nos.[1] to 3. That no steps are taken by Defendant Nos.[1] to 3 to challenge the said JV Agreement for the last 13 long years and that therefore it is too late in a day for Defendant Nos. 1 to 3 to contend in a suit filed by Plaintiffs that the JV Agreement is unenforceable. Mr. Jagtiani would submit that the notice published by katkam 17/27 Defendant Nos.[1] to 3 on 7 July 2012 does not, in any manner, terminate the JV Agreement. That Defendant Nos.[1] to 3 in fact referred to termination of agreement with Defendant Nos.[4] to 6 effected in the year 1999 in the said public notice. That Defendant Nos.[4] to 6 have not taken any steps for challenging the termination of their development agreement and therefore Defendant Nos.[4] to 6 cannot defeat or object to compromise effected between Plaintiffs and Defendant Nos.[8] to 11.

19 Mr. Jagtiani would further submit that the suit plot is affected by encroachment on a large scale. That one of the objectives behind appointment of Court Receiver was to ensure removal of encroachment through MCGM. He would rely upon order passed by this Court on 12 June 2018, in Notice of Motion No.2381 of 2011 under which the MCGM is expected to remove encroachment on the suit plot. That continuation of Court Receiver would ensure removal of encroachment on the suit plot and swift development thereon so as to ensure that the obligations under the Consent Terms are fulfilled by Defendant Nos.[8] to 11. That continuance of the Court Receiver actually enure to the benefit of all parties.

20 Upon a query being raised by this Court about anxiety of Defendant Nos.[1] to 3 of continuation of Court Receiver as well as carrying out of development by Defendant Nos.[8] to 11 as agent of Court Receiver to give a stamp of approval to the rights of Defendant Nos.[8] to 11, Mr. Jagtiani would fairly submit that the Court Receiver may be katkam 18/27 continued only for the purpose of removal of encroachment and not for the purpose of completion or supervision of construction of the building. He would further submit that Defendant Nos.[8] to 11 shall not claim any equity in respect of construction carried out on the suit plot in pursuance of the Consent Decree, in any proceedings initiated by Defendant Nos.[1] to 3 or by Defendant Nos. 4 to 7.

21 I have considered the submissions canvassed by the learned Counsel appearing for parties and I have gone through the Consent Terms.

22. Defendant Nos.[1] to 3 as well as Defendant Nos.[4] to 6 are opposing compromise of suit filed by Plaintiffs with Defendant Nos.[8] to 11 alone, on the ground that the compromise effected with Defendant Nos.[8] to 11 affects their rights in the suit plot. Under provisions of Order XXIII Rule 1 of the Code, it is lawful for a Plaintiff to abandon the suit or to abandon part of his claim against all or any of the Defendants. Order XXIII, Rule 1 of the Code reads thus: “1. Withdrawal of suit or abandonment of part of claim.- (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the katkam 19/27 effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) Where the Court is satisfied,- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part t of the claim. (4) Where the plaintiff- (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under subrule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.”

23 Under Order XXIII Rule 3 of the Code, the Court can pass a decree in accordance with lawful agreement or compromise signed by the parties. Order XXIII Rule 3 reads thus: “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 subject-matter 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: katkam 20/27 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 granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment. Explanation.- An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule.”

24 Thus so long as the Court is satisfied that the Agreement entered into between the parties is lawful, it can decree the suit in accordance with such agreement or compromise. Thus, all that the Court needs to determine while decreeing the suit on the basis of compromise arrived at between the parties is whether the agreement or compromise is lawful or not. Explanation to Order XXIII Rule 3 of the Code makes it clear that an agreement or compromise which is void or voidable under the provisions of Indian Contract Act, 1872 shall not be deemed to be lawful within the meaning of Rule 3 of Order XXIII of the Code. Therefore, limited enquiry that Court can institute while considering a compromise presented before it is about nature of the compromise i.e. whether it is lawful or not.

25 The cumulative reading of Rule 1 and Rule 3 of Order XXIII of the Code would make it clear that if a Plaintiff compromises a suit only against selected Defendants and does not wish to continue the suit qua rest of the Defendants, it is lawful for the Plaintiff to abandon the claim in the suit qua such Defendants are not parties to the compromise. katkam 21/27

26 In the present case, Plaintiffs have decided to compromise the suit only qua Defendant Nos. 8 to 11. Such compromise is based on a belief that Defendant Nos. 8 to 11 are in a position to carry out construction and handover commercial units to the Plaintiffs as per allotments made in their favour. Whether such belief is correct or not and whether Defendant Nos. 8 to 11 indeed have a right to carry out construction on the plot is something which is not being decided in the compromise terms. If Defendant Nos.[1] to 3 or Defendant Nos. 4 to 6 believe that Defendant Nos. 8 to 11 do not have right to carry out construction on the suit plot, they will have to adopt appropriate remedies in that regard and compromise effected by the Plaintiffs with Defendant Nos.[8] to 11 will not come in the way of Defendant Nos.[1] to 3 or Defendant Nos.[4] to 6 from prosecuting their remedies.

27 I have gone through the Consent Terms and I do not find that any condition therein is unlawful in any manner. The agreement arrived at between Plaintiffs and Defendant Nos.[8] to 11 is neither void nor voidable under the provisions of the Indian Contract Act. Therefore, this Court cannot be prevented from accepting the compromise effected with Plaintiffs and Defendant Nos. 8 to 11 and to decree the suit only qua Defendant Nos. 8 to 11. So far as the rest of the Defendants are concerned, the suit will have to be treated as abandoned under provisions of Order XXIII Rule 1 of the Code. katkam 22/27

28 Much has been said about paragraph 24 of the Consent Terms under which the Notice of Motion No.2381 of 2011 is sought to be made absolute in terms of prayer clauses (a) and (b) therein. Prayer clauses (a) and (b) of the Notice of Motion read thus: “(a) that the Defendant Nos. 10 and 11 be appointed as agent of the Court Receiver, High Court, Bombay, who is appointed in Notice of Motion No. 316 of 2009 in Suit No. 134 of 2009 by His Lordship Mr. Justice S.C. Dharmadhikari for undertaking development and redevelopment of the suit property being plot of land bearing Survey No.41 part (1) (B), bearing CTS No. 444, 444/1, 444/2 and 445 situate at Swami Vivekanand Road, Village Oshiwara, Jogeshwari, Mumbai 400102 on such terms and conditions as deemed fit and proper by this Hon'ble Court; (b) that pending the hearing and final disposal of the suit, the order dated 2/12/2010 passed by His Lordship Mr. Justice S.C. Dharmadhikari be clarified and the Defendant Nos. 10 and 11 may be allowed to undertake the suit property for development and construction of commercial complex thereon after getting approval and sanction from the Bombay Municipal Corporation through Court Receiver, High Court, Mumbai appointed by an Order dated 2nd December 2010 as a Receiver in respect of the said immoveable property viz. plot of land bearing Survey No.41 part (1) (B), bearing CTS No. 444, 444/1, 444/2 and 445 situate at Swami Vivekanand Road, Village Oshiwara, Jogeshwari, Mumbai 400102; 29 Defendants Nos.[1] to 3 apprehend that grant of prayer clauses (a) and (b) in the Notice of Motion No.2381 of 2011 will be misused by Defendant No.8 to 11 to show to the world at large that they have been appointed as an agent of the Court Receiver for the purpose of carrying out construction on the suit plot. The Court Receiver was appointed by this Court essentially to preserve the suit plot so as to ensure that a building can be constructed thereon, in which Plaintiffs can be allotted units in the event of the suit being decreed. On account of various factors, katkam 23/27 including restrictions put on Defendant Nos.[1] to 3 by Competent Authority under SAFEMA, the construction of the building has not commenced after appointment of the Court Receiver. One of the major hurdles in carrying of the construction is large scale encroachment on the plot. Though this Court has passed orders directing the Municipal Corporation to remove encroachments carried out by illegal occupants on the suit plot, such encroachments are apparently not removed till date. In this connection, reference can be made to the order dated 4 December 2015 passed in Court Receiver’s Report No.629 of 2015. The Court Receiver is being continued in respect of the property essentially to ensure that the encroachment on the suit plot is removed, which in fact enures to the benefit of all parties. Surely Defendant Nos.[1] to 3 or Defendant Nos.[4] to 6 cannot insist that encroachments on the plot must continue and that the building thereon should never be constructed. Therefore, continuance of Court Receiver in respect of suit plot will be for limited purpose of ensuring that encroachments thereon are removed. This Court is thus not contemplating carrying out construction under supervision of Court Receiver. In this regard Mr. Jagtiani has made a statement on behalf of the Respondent Nos.[8] to 11 that continuance of Court Receiver be directed only for limited purpose of removal encroachments on the plot.

30 In the light of the above, even though paragraph 24 of the Consent Terms seek to make Notice of Motion No.2381 of 2011 absolute in terms of prayer clauses (a) and (b) thereof, the same would not mean katkam 24/27 that this Court has put any stamp of approval in respect of any right of Defendant Nos.[8] to 11 to carry out construction on the suit property. If rights of Defendant Nos.[8] to 11 are challenged by any person/ entity including Defendant No.1 to 6, such proceedings shall be decided independent of the contents of the Consent Terms and nothing agreed therein would bind other parties, who are not signatories to the Consent Terms, in any manner. In my view, this would dispel the apprehension expressed by Mr. Tamboly about continuance of Court Receiver.

31. I am inclined to accept the Consent Terms and decree the Suit qua Defendant Nos. 8 to 11 in the peculiar facts and circumstances of the case, where Defendant Nos. 1 to 3 are incapacitated from developing the Plot. Rights in favour of Defendant Nos. 4 to 6 have been terminated and they have not taken any steps to challenge the termination. Entitlements of Defendant Nos. 1 to 3 under the Joint Venture Agreement with Defendant Nos. 8 to 11 are forfeited by the Competent Authority under SAFEMA. There is some degree of recognition of right of Defendant Nos. 8 to 11 to construct building(s) on the Suit Plot. Except for rights of Plaintiffs and of Defendant Nos. 8 to 11, the entire Suit Plot would have been forfeited as was done by the Competent Authority vide Order dated 22 March 2001. Therefore leaving open rights of Defendant Nos. 1 to 3 and of Defendant Nos. 4 to 6, construction of building needs to be permitted so as to ensure that Plaintiffs receive possession of Units booked by them. If Defendant Nos. 8 to 11 are willing to recognize Plaintiffs’ rights under the allotment letters, I see no reason why katkam 25/27 Defendant Nos. 8 to 11 should not be permitted to carry out construction as per the JV Agreement and as per the order of the Competent Authority.

32 In my view therefore Consent Terms submitted by Plaintiffs and Defendant Nos.10 and 11 can be accepted, subject to the observations made above and the suit can be decreed only qua Defendant Nos.10 and 11. So far as other Defendants are concerned, the suit will have to be treated as abandoned under provisions of Order XXIII Rule 1 of the Code.

33 I accordingly proceed to pass the following order: i) Consent Terms tendered by Plaintiffs and Defendant Nos.10 and 11 are accepted and taken on record and marked ‘X’ for identification. Plaintiffs’ suit is decreed only qua Defendant Nos. 8 to 11 as per the Consent Terms. All undertakings in the Consent Terms qua Defendant Nos.[8] to 11 are accepted. ii) Plaintiffs’ suit qua rest of the Defendants shall stand abandoned under provisions of Order XXIII Rule 1 of the Code. iii) Acceptance of Consent Terms and decree of the suit based thereon will not have any effect on the rights of any other Defendants except Defendant Nos. 8 to 11 and they shall be free to agitate their rights independently. Nothing stated in the Consent Terms shall come in the way of those Defendants from exercising their rights against Defendant Nos. 8 to 11. katkam 26/27 iv) Court Receiver is continued in respect of the Suit Plot for the limited purpose of removal of encroachments thereon. The Court Receiver shall take steps to ensure that the encroachments on the suit plot are removed by taking aid of office of the City Survey as well as MCGM. The suit plot has already been demarcated and the Court Receiver shall take assistance of MCGM for removal of encroachments on the suit plot. After removal of such encroachments or substantial portion thereof, the Court Receiver shall apply to the Court for discharge by handing over possession of the Plot to Defendant Nos. 8 to 11. v) Defendant Nos. 8 to 11 shall not claim any equity in respect of construction put by them on the basis of Consent Terms qua rights of Defendant Nos.[1] to 3 and Defendant Nos.[4] to 6 and all rights and contentions between them are kept open to be agitated in appropriate proceedings.

34 With the above observations, the suit is disposed of. There shall be no order as to costs. Refund of Court Fees as per rules.

35 In view of the disposal of the Suit, nothing survives in Chambers Summonses, Notices of Motion and Interim Applications, and the same are disposed of accordingly. (SANDEEP V. MARNE, J.) katkam 27/27