AKHIL BHARTVARSHIYA MARWARI AGARWAL JATIYA KOSH & ORS. versus BRIJLAL TIBREWAL & ORS. on 14 December 2018

AAKHIL BHARTVARSHIYA MARWARI AGARWAL JATIYAKOSH & ORS.

v.

BRIJLAL TIBREWAL & ORS.

(Civil Appeal Nos. 12088-12089 of 2018)

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DECEMBER 14, 2018

[A. K. SIKRI, ASHOK BHUSHAN AND M. R. SHAH, JJ.]

Practice & Procedure – Appellant No.1-Trust acquired 9797sq. meters of land for providing housing to weaker sections of thesociety – Said area of 9797 sq. meters included the Plot bearingCCTS No.97/A-5/2 – Trust constructed building A-1 on sub-plot carvedout of the said plot – Purchasers-Respondents took possession ofthe respective flats – Respondents filed suit inter alia fordirecting the Trust and others to execute the Conveyance of PlotNo. A/1 claiming that they were entitled to the Plot area of around1205 sq. yards (1009.70 sq.meters) – Trial Court decreed the Suit –DFirst Appeal before the High Court, dismissed vide order dated04.12.2014 – Thereafter, the High Court on oral application of theRespondents by way of “Note for speaking to the Minutes” clarifiedthat the words “2700 sq. feet” appearing in the judgmentdtd. 04.12.2014 should be read as “2700 sq. meters” and directedEthe execution of the deed of Conveyance of the land to the extent ofbuilding i.e. 2700 sq. meters – On appeal, held: A “Note for speakingto Minutes” is required to be entertained only for the limited purposeof correcting a typographical error or an error through oversight,which may have crept in while transcribing the original order – Itcannot be considered at par with review application or with anFapplication for clarification/modification of order – While passingthe order below the “Note for speaking to the Minutes”, the HighCourt travelled beyond its jurisdiction in regard to the scope ofdeciding a “Note for speaking to the Minutes” and virtually modifiedits original order passed in First Appeal – Order passed below theG“Note for speaking to the Minutes” set aside – Even otherwise,it is not appreciable how the High Court arrived at the figure of2700 sq. meters – Order passed by the Divisional Registrar, Co-operative Societies, in proceedings initiated by the Society of flatpurchasers, granting deemed conveyance of area admeasuring2593.70 sq.meters is modified to the extent of area admeasuringH1009.70 sq.meters only.

Disposing of the matters, the Court

HELD: 1.1 While passing order below the “Note forspeaking to the Minutes”, the High Court travelled beyond itsjurisdiction in regard to the scope of deciding a “Note for speakingto the Minutes”. A “Note for speaking to Minutes” is requiredto be entertained only for the limited purpose of correcting atypographical error or an error through oversight, which may havecrept in while transcribing the original order. Once, the judgment/order is pronounced and if any party to the same wants anyrectification of any typographical error and any clerical mistakeregarding the date or number, such a party may apply to theconcerned Court for correcting such an error in the judgment/order. However, a “Note for speaking to the Minutes” cannotbe considered at par with a review application or in a given case,with an application for clarification/modification of an order. Whilepassing the impugned order below the “Note for speaking to theMinutes”, the High Court virtually modified its original orderpassed in First Appeal. While passing the impugned order, theHigh Court has given further directions as if the High Court waspassing the order on an application for clarification/modification.Therefore, such a course was not open to the High Court whiledeciding a “Note for speaking to the Minutes”. Since, the HighCourt has travelled beyond its jurisdiction in regard to the scopeof deciding a “Note for speaking to the Minutes”, the impugnedorder passed below the “Note for speaking to the Minutes” isset aside. [Para 12][888-A-E]

1.2 Even otherwise, the impugned orders are notsustainable at law. It was the Appeal before the High Court,preferred by the Appellants herein–original Defendants,challenging the judgment and decree passed by the Trial Court,by which the Trial Court specifically passed a decree directingthe only Defendant No.1 to convey the title and execute documentin favour of the Society in respect of Suit Building and land to theextent of Suit Building. The area of Suit Building was 1009.70sq. meters. Against that judgment and decree, original PrivateDefendants-Appellants were before the High Court. The TrialCourt never passed any decree directing the Appellants toexecute the Deed of Conveyance to the extent of 2700 sq. metersof land. Therefore, while dismissing the appeal, even otherwise, A

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Athe High Court could not have passed any further order beyondthe judgment and decree passed by the Trial Court and that tooin absence of any cross objection and/or cross appeal preferredby the original Plaintiffs. In an Appeal preferred by the originalDefendants, at the most, the High Court can dismiss the Appealand confirm the judgment and decree. However, the Appellants-Boriginal Defendants cannot be put in a worse condition than beyondthe judgment and decree passed by Trial Court which was appealedbefore the First Appellate Court and that too in the absence ofany cross-appeal or cross objection by the original Plaintiffs.Therefore also, the impugned orders passed by the High CourtCwhich, as such, will go beyond the judgment and decree passedby the Trial Court are not sustainable. Thus, by passing theimpugned order, it can be said that the High Court has passedorder beyond the scope and ambit of the Appeal before it and hasexceeded in its jurisdiction not vested in it. [Para 12.1][888-F-H; 889-A-D]D

1.3 Even otherwise, it is not appreciable how the High Courthas arrived at the figure of 2700 sq. meters. It appears from thematerial on record that it was never the case on behalf of theoriginal Plaintiffs that the original Defendant No.1-Trust shallexecute the Deed of Conveyance of the land to the extent ofE2700 sq. meters. Even considering the map sanctioned by theCorporation and even considering the reply filed by theCorporation before this Court, it appears that the total plot areaof CTS No. 97/A-5/2 on which the building A-1 was constructed,was 2593.70 sq. meters, out of which there was construction ofFbuilding A-1 on the land admeasuring 1009.70 sq. meters.Therefore also, the impugned order passed by the High Courtdirecting the Appellants herein-original Defendant No.1 toexecute the Deed of Conveyance in respect of the land to theextent of 2700 sq. meters is not sustainable.[Para 12.2]

[889-E-G]G

1.4 The impugned orders passed by the High Court dated23.12.14 passed below “Note for speaking to the Minutes”, inFirst Appeal and the order passed in Civil Application deserveto be quashed and set aside. [Para 12.5][890-H; 891-A]

1.5 The original Plaintiff-Society shall not be entitled to theHDeed of Conveyance to the extent of area admeasuring 2700

sq.meters and/or even 2593.70 sq.meters and they shall beentitled to the Deed of Conveyance of the area admeasuring1009.70 sq.meters which was the built up area of building A-1and, therefore, the judgment passed by the High Court confirmingthe order passed by the Divisional Registrar Co-operativeSocieties of deemed Conveyance of the area admeasuring2593.70 sq. meters is also quashed and set aside. The orderpassed by the Divisional Registrar of Deemed Conveyance ofthe area admeasuring 2593.70 sq.meters is modified to the extentof granting deemed Conveyance of the area admeasuring 1009.70sq.meters only. [Para 13.1, 15][891-D-F; 892-B]

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 12088-12089 of 2018.

From the Judgment and Order dated 23.12.2014 of the HighCourt of Judicature at Bombay in First Appeal No. 466 of 2010 andorder dated 04.07.2015 in Civil Application No. 1698 of 2015.

With

Civil Appeal No. 12090 of 2018 and Contempt Petition Nos. 25-26 of 2018.

C. A. Sundaram, Shyam Divan, Neeraj Kishan Kaul, P. S. Patwalia,Pallav Shishodia, Sr. Advs., Jatin Zaveri, Suraj Iyer, Neel Kamal Mishra,Ms. Rohini Musa, Abhishek Gupta, Zafar Inayat, R. P. Bhatt, Ashok M.Saroagi, Ms. Vithika Garg, Ms. Sangeeta Kumar, R. R. Verma, Ms.Vidushi Garg, Bhushan Oza, Ms. Priti Purandare, Anand Sukumar,Bhupesh Kumar Pathak, Ms. Meera Mathur, Nishant RamakantraoKatneshwarkar, Advs. for the appearing parties.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Leave granted in all the Special Leave Petitions.

2. As all these appeals are interconnected between the sameparties and with respect to the same properties, these are being disposedof by this common judgment.

3. Feeling aggrieved and dissatisfied with the impugned order dated23.12.2014 in F. A. No. 466 of 2010 and the order dated 04.07.2015 inCivil Application No. 1698 of 2015 in F.A.No.466 of 2016 passed by theHigh Court of Judicature at Bombay (hereinafter referred to as the ‘HighCourt’), the original Defendants have preferred the present appeals.

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3.1 Feeling aggrieved and dissatisfied with the impugned final orderdated 10.09.2015 passed by the High Court in Writ Petition No. 992 of2015 the original Petitioners of the aforesaid Writ Petition have preferredthe present appeals.

4. The facts leading to the present appeals in nutshell are as under:B

That Appellant No. 1 Trust- Akhil Bhartvarshiya Marwari AgarwalJatiya Kosh (hereinafter referred to as the ‘Trust’) was, registered underBombay Public Trusts Act, 1950. According to the Trust, under a dulyregistered Conveyance dated 30.10.1974, the Trust acquired 9797 sq.meters of land with a charitable object of providing Housing to weakerCsections of the Society. That the said area of 9797 sq. meters includedthe Plot bearing CTS No. 97/A-5/2 of Village Chinchavli, Malad (East),Mumbai admeasuring 2593.70 sq. meters. According to the Trust, theMumbai Municipal Corporation sanctioned the plan of the Trust in theyear 1974-75 for construction of building A-1 to be constructed on sub-plot carved out of CTS No. 97/A-5/2 (the disputed property). That theDbuilding A-1 was to consume the area of 1009.70 meters equivalent to1205 sq. yards. That, between 1975-78, the Trust constructed buildingA-1 comprising of 20 Flats each admeasuring built-up area of 588 sq. ft.and the purchasers took possession of the respective flat. Thereafter,about 26 years after they took possession, the Purchasers-RespondentsEherein the original Plaintiffs filed Suit No. 4111 of 2004, inter alia,for directing the Trust and others to execute the Conveyance of PlotNo. A/1 claiming that they were entitled to the Plot area of around 1205sq. yards (1009.70 sq.meters). That the original Plaintiffs prayed forthe following reliefs in the Suit:

Fa) That it is declared that the Defendant No. 1 is bound and liable:

i) To complete the said building A/1 in accordance with thebuilding plans sanctioned by and in terms of the conditionsof IOD and CC issued by the Defendant No. 2 in respectthereof.

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ii) To obtained Occupation Certificate for the said building No.A/1.

iii) To provide supply of municipal water to the said buildingA/1.

iv) To obtain building Completion Certificate for the said buildingHA/1.

v) To form co-operative housing society of the Plaintiffs.

vi) To convey the said building A/1 together with the plot ofland J/1.

b) That this Hon’ble Court may be pleased to pass permanentorder directing:

i)Defendant No. 1 to obtain occupation certificate andmunicipal water connection to the said building A/1.

ii)Defendant No. 1 to form co-operative housing society ofthe plaintiffs.

iii) Defendant No. 1 to convey the said building together withplot J/1 to the Co-operative Housing Society of the Plaintiffs.

iv) Defendant No. 1 not to carry out any construction uponthe said plot J.

v) Defendant No. 2 to cancel the permission given to theDefendant No. 1 to carry out construction on the saidplot “J”.

vi) Defendant No. 2 not to give any further permission toDefendant No. 1 to carry out any construction on the saidplot “J”.

vii) Defendant No. 2 to take necessary actions againstDefendant No. 1 for carrying out construction ofunauthorized hutments.

viii)Defendant No. 2 to take necessary actions againstDefendant No. 1 for cutting of trees.

4.1 It was the case on behalf of the original Plaintiffs that thePlaintiffs have paid full purchase price for purchase of their respectiveflats in the said building A-1, constructed by the original Defendant No.1, Trust. That, though the Trust handed over the possession of the flatsto the respective flat owners and they are put in possession andoccupation of the respective flats, the Trust have failed to obtainoccupation certificate of the said building in terms of the IOD and CCissued by the Corporation. That it was the case on behalf of the originalPlaintiffs that the original Defendant No. 1 Trust, as promoter under theprovisions of Maharashtra Ownership Flats Act, 1963 (hereinafterreferred to as the ‘MOFA’) were bound to enter into the agreement, as A

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Aprescribed under the said Act with all such flat purchasers for sale ofthe flats. It was the case on behalf of the original Plaintiffs that, underthe provisions of the ‘MOFA’ and, otherwise also, it is the basic duty andresponsibility of the Trust to provide all the essential supplies and servicesincluding supply of water, electricity and sanitary services to be enjoyedby the flat purchasers. It was also the case of the original Plaintiffs thatBthe Trust was bound to form the Co-operative Society of the flatpurchasers under the ‘MOFA’, however, though the Trust collected fromeach of the flat purchasers an amount of Rs. 351/- towards membershipfee and share money of such Society, they did not form such a Co-operative Society. It was a specific case on behalf of the original PlaintiffCthat the building occupied by the plaintiffs are consisting of ground plusfour storeys and the total built-up area is around 1205 sq. meters. It wasthe case on behalf of the original Plaintiffs that, under the provisions oflaw, the Plaintiffs and/or the Society to be formed by the flat purchasersare entitled to an area of land corresponding to the built-up area of building so constructed of such land utilizing the FSI permissible at the relevantDtime. It was the further case on behalf of the original Plaintiffs thatdespite the above, the Trust original Defendant No. 1, made an attemptto carry out some construction just adjacent to the said building A-1 ofthe plaintiffs which was registered by the plaintiffs even by makingcomplaint to the Defendant No.2, Corporation. However, as no actionEwas taken by the Corporation for illegal and unauthorized constructionon the plot adjacent to building A-1, the original Plaintiffs instituted theaforesaid Suit and prayed for the aforesaid reliefs.

4.2 The Suit was resisted to by the original Defendants. The originalDefendant No. 1 Trust and original Defendants Nos. 3 to 17, filed theFcommon written statement denying the averments and allegations in theSuit. It was the case on behalf of the original Defendant, so stated in thewritten statement that the original Defendant No. 1 and 3 to 17 are theowners of property bearing CTS Nos. 97/A-5/2, 97/A-5/4 and 97/A-5/3total admeasuring 9797 sq. meters. That the property was purchasedby the Trust with intention to develop the same for the benefit of middle-Gclass citizens. The application was made to the Divisional Registrar togrant permission which was granted on 20.12.1975. That thereafter,Defendant No. 1 Trust appointed an Architect, for the purpose ofsubmitting plans. The plans were submitted for construction of 14buildings, each being ground plus four upper floors. It was furtherHcontended that the Trust could complete only one building, as further AKHIL BHARTVARSHIYA MARWARI AGARWAL JATIYAKOSH v. BRIJLAL TIBREWAL [M. R. SHAH, J.]

construction could not be done because of the declaration of the SuitPlaint as the surplus land under Urban Land Ceiling Act. The appealpreferred by the Trust was partly allowed in 1993 and 1998 and only4000 sq. meters area was declared as surplus land. It was submittedthat, therefore, the Trust has to drop the idea of further development andit was, therefore, decided to construct structures for only charitablepurposes like Schools, Colleges etc. It was further contended that theplot is effectively divided into three parts, first part is building occupiedby the plaintiffs, second is the School building and the third being the plotreserved for garden. It was further contended that FSI in respect of theplot in which the plaintiffs’ building is situated is not fully consumed andthey are entitled to consume full FSI by putting up additional constructionfor charitable purposes and only thereafter they are ready and willing toconvene the property. It was further contended that there is noagreement entered into with any of the flat purchasers and that onlyafter approval of the draft, the agreement can be entered into. It wassubmitted that after compliance of all these formalities, the originalDefendant No. 1 Trust, can consider the formation of the society.Therefore, it was requested to dismiss the Suit.

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4.3 That the learned Trial Court framed the following issues:

1) Does the defendant no. 2 prove that the suit is maintainablein absence of notice u/section 527 of MMC Act?

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2) Does plaintiff prove that he is entitled for direction todefendant no. 1

I.To complete the building A-1 in accordance with thebuilding plans sanctioned by and in terms of thecondition from IOD and CC issued by the defendantFno. 2 Corporation in respect thereof?

II.To obtain occupation certificate for the buildingno. A-1.

III. To provide supply of municipal water to the buildingGno.-A.

IV. To obtain building completion certificate for buildingno. -A.

V.To form co-operative housing society of the front age.

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VI. To convey building no. A-1 with the plot of land J-1 tothe purchasers.

3) Does plaintiff prove that they are entitled for the reliefs asprayed?

4) What decree/order?

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4.4 That on behalf of the plaintiffs as many as seven witnessescame to be examined who were all flat purchasers.

4.5 On behalf of Defendant. one Omprakash Didwanja DW-1came to be examined. Both the parties produced the documentaryCevidences. That, on appreciation of evidence, the learned Trial Courtdecreed the Suit as under:

“Defendant No.1 shall execute and register the agreements infavour of flat purchasers as per Section 4 of ‘MOFA’ at the cost ofplaintiffs within three months from the date of order.

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DDefendant No.1 shall complete the suit building in accordancewith the building plans sanctioned as per IOD and CC issued byDefendant No. 2 and obtain Occupation Certificate within four monthsfrom the date of order. If defendant no. 1 failed to do so within stipulatedtime, plaintiffs shall get the work done through any other Builder of theirchoice and recover the cost from defendant no. 1 and thereafter BMCEshall grant Occupation Certificate to the plaintiffs.

Defendant No.1 is also directed to make the necessary compliancefor obtaining supply of municipal water to the suit building.

Defendant No. 2 shall supply the municipal water to the suit buildingFon humanitarian ground till the full compliance is made by plaintiffs anddefendant no. 1.

Defendant No. 1 is directed to form a co-operative Housing Societyof the flat purchasers of the suit building within four month from the dateof order:- G

Defendant No. 1 is entitled to the balance FSI of the said plot ofland which was available to them at the time of sanction of originalplans, which Defendant No. 1 is entitled to consume the same tillconveyance is registered.

Defendant No. 1 shall convey the title and execute documents infavour of the society in respect of the suit building and land to the extentof suit building as shown in the plans within six months from the date ofthe order, failing which plaintiffs shall be entitled to apply before theCompetent Authority u/section 5A for unilateral conveyance in theirfavour.

Decree be drawn accordingly.”

5. That feeling aggrieved and dissatisfied with the judgment anddecree passed by the Trial Court decreeing the Suit No. 4111 of 2004,the original Defendants (except for Defendant No. 2 Corporation)preferred the First Appeal No. 466 of 2010 before the High Court. Atthis stage, it is required to be noted that during the pendency of the Suit,the Society of the flat purchasers was registered in the name of AgrasenCo-operative Housing Society Ltd. under the provisions of theMaharashtra Co-operative Societies Act, 1960. Thereafter, during theFirst Appeal preferred by the original Defendants, in the year 2014, theSociety initiated proceedings before Divisional Registrar, Co-operativeSocieties for execution of Conveyance Deed. That, thereafter, the HighCourt dismissed the Appeal No. 466 of 2010 by judgment and orderdated 04.12.2014. The High Court specifically held that a Deed ofConveyance of the land to the extent of the building to be executedwithin nine months.

5.1 It appears that in the proceedings before the DivisionalRegistrar initiated by the Society, the Trust filed a reply before theDivisional Register on 10.12.2014 pointing out that the Respondents hereinthe original Plaintiffs were entitled to the Conveyance of land admeasuring1009 sq. meters only and not 2593.70 sq. meters as claimed by originalPlaintiffs. That, thereafter, the High Court, on an oral application of theRespondents herein by way of “Note for speaking to the Minutes” clarifiedthat the words “2700 sq. feet” appearing in paragraph 8 of the judgmentand order dated 04.12.2014 should be read as “2700 sq. meters”. Itappears that as the objection was raised by the Trust before the DivisionalRegistrar that the Respondents are entitled to Conveyance of landadmeasuring 1009 sq. meters only and not 2593.70 sq. meters as allegedand prayed, and to get over the said objection of the Appellants beforethe Divisional Registrar, the Respondents-original Plaintiffs again madean oral application by way of “Note for speaking to the Minutes” allegingthat though in the paragraphs 8 and 9 of the judgment and order dated A

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A04.12.2014, it was mentioned that the Respondents were entitled to getthe Deed of Conveyance executed in respect of the area equivalent to2700 sq. meters, but in the operative part, it was mentioned thatConveyance in respect of the land only to the extent of plot be executedand, therefore, the order deserves to be corrected by way of mentioningthe area of 2700 sq. meters. That by the impugned order, the HighBCourt virtually modified its earlier order dated 04.12.2014 and directedthe execution of the deed of Conveyance of the land to the extent ofbuilding i.e. 2700 sq. meters. It appears that on the basis of the orderdated 23.12.2014 passed by the High Court directing to execute theConveyance of the land to the extent of the building i.e. 2700 sq. meters,Cvide order dated 13.01.2015, the Divisional Registrar passed an ordergranting deemed Conveyance of the area admeasuring 2593.70 sq.meters.

5.2 It appears that, thereafter, the Appellant herein, the Trust andother filed Civil Application No. 1698 of 2015 in F.A. No. 466 of 2010,Dpraying for modification of the direction to execute the deed ofConveyance to the extent of 2700 sq. meters. Simultaneously, thePetitioner also filed Writ Petition No. 992 of 2015, challenging the orderpassed by the Divisional Registrar granting the deemed Conveyance.

5.3 That by impugned order the High Court has dismissed theECivil Application No. 1698 of 2015 in First Appeal No. 466 of 2010.However, by dismissing the Civil Application, the High Court has furtherclarified that the appellants shall be entitled to consume the balance FSIof plot of the land. That by the impugned order, the High Court has alsodismissed the Writ Petition No. 992 of 2015 and has confirmed the orderof deemed Conveyance for the area admeasuring 2593.70 sq. meters.F

6. Feeling aggrieved and dissatisfied with the impugned orderpassed by the High Court below “Note for speaking to the Minutes” inFirst Appeal No. 466 of 2010 as well as the order passed in CivilApplication No. 1698 of 2015 in First Appeal No. 466 of 2010, the originalDefendants-Appellants have preferred the present SLP (Civil) Nos.G10093-94 of 2016. Feeling aggrieved and dissatisfied with the orderpassed by the High Court in Writ Petition No.992/2015, the originalPetitioners have preferred the SLP (C) Nos. 15056 of 2016.

7. Shri C.A. Sundaram, learned Senior Advocate and Shri ShyamDivan, learned Senior Advocate have appeared on behalf of theH

respective Appellants in respective Appeals and Shri Neeraj Kishan Kaul,learned Senior Advocate, Shri P.S. Patwalia, learned Senior Advocateand Shri R.P. Bhatt, learned Senior Advocate have appeared on behalfof the contesting Respondents-original Plaintiffs. Shri Pallav Shishodia,learned senior counsel has also appeared on behalf of the Respondent,Municipal Corporation.

8. Shri C. A. Sundaram, learned Senior Advocate appearing onbehalf of the Appellants-original Private Defendants has vehementlysubmitted that the impugned orders are not sustainable at law.

8.1 It is vehemently submitted by learned counsel that the impugnedorder dated 23.12.2014 passed in F.A. No. 466 of 2010 on the “Note forspeaking to the Minutes” is wholly unsustainable under the law and iswholly without jurisdiction.

8.2 It is vehemently submitted by learned counsel that the impugnedorder below “Note for speaking to the Minutes”, is, as such, can be saidto be wholly without jurisdiction inasmuch as such order could not havebeen passed on the “Note for speaking to the Minutes”. It is vehementlysubmitted by the learned counsel that an application for “Note forspeaking to the Minutes” is required to be entertained only for the limitedpurposes of correcting the typographical error or an error throughoversight, which may have crept in while transcribing the original order.It is submitted that as such, the impugned order on the “Note for speakingto the Minutes” is virtually modifying and/or reviewing the earlier orderpassed in First Appeal and, therefore, such an order could not havebeen passed by the High Court on an application for “Note for speakingto the Minutes”. It is submitted that while passing the impugned order,the High Court has given further directions and, thereby, has virtuallymodified the original order. It is submitted that such a course was notopen to the High Court while deciding the said “Note for speaking to theMinutes”. It is submitted that, therefore, the impugned order on “Notefor speaking to the Minutes” is not sustainable at law. In support of hisabove submissions, the learned Senior Advocate has heavily relied uponthe decision of Gujarat High Court in the case of Kotak MahindraBank Ltd. Vs. Official Liquidator of M/s. Gujrat BD Luggage Ltd.2012 SCC Online Gujrat 4339 as well as the decision of the DivisionBench of the Bombay High Court in the case of the Artson EngineeringLtd. Vs. Indian Oil Corporation Ltd. 2015 SCC Online Bombay 39.

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A8.3 It is further submitted by learned counsel that such an orderpassed on “Note for speaking to the Minutes” is virtually modifying itsearlier judgment and order in Frist Appeal. It is submitted that as such,while at the time of deciding and disposing of the First Appeal, a specificsubmission was made on behalf of the parties with respect to the areafor which the Deed of Conveyance to be executed and the submissionBon behalf of the respective parties were noted and thereafter the HighCourt dismissed the appeal without any specific reference whether theDeed of Conveyance to be executed for the total area of 2700 sq. meters.It is submitted that, therefore, even if an independent review applicationwould have been preferred in that case also such an order could notChave been passed, which is passed as such on the “Note for speaking tothe Minutes”, which is not sustainable as submitted hereinabove.

8.4 It is further submitted by learned counsel that even otherwisethe impugned order could not have been passed by the High Court andthat too in the appeal preferred by the appellants more particularly whenDthe High Court dismissed the appeal preferred by Appellants-originalPrivate Defendants and confirmed the judgment and decree passed thelearned Trial Court. It is vehemently submitted that by the impugnedorder, as such the High Court has granted the relief which as such wasnot specifically granted by the learned Trial Court while decreeing theSuit preferred by the original Plaintiffs. It is submitted that when againstEthe judgment and decree passed by the learned Trial Court, only theoriginal Private Defendants preferred the appeal and there was neitherany cross objection preferred by the original Plaintiffs nor any appealpreferred by the original Plaintiffs, the High Court could not have passedsuch order (apart from the fact passing the order on “Note for speakingFto the Minutes”), when the High Court dismissed the appeal. It issubmitted that at the most the High Court can/could have dismissed theappeal confirming the judgment and decree passed by the learned TrialCourt. It is submitted, that by dismissing the appeal preferred by theAppellants-original Private Defendants and when neither there was any cross objection nor any appeal preferred by the original Plaintiffs, theGHigh Court could not have passed any order beyond the judgment anddecree passed by the learned Trial Court. It is submitted that by passingthe impugned order as such the High Court has granted the relief andissued directions which is beyond the judgment and decree passed bythe learned Trial Court. It is submitted that, therefore, thereafter whenHthe appellants preferred the application to recall the order passed on “Note for speaking to the Minutes”, the High Court ought to have recalledsuch order. It is submitted that, however, the High Court has mechanicallyrejected the review application. It is submitted that, therefore, theimpugned orders passed on “Note for speaking to the Minutes”, and theorder passed in review application deserves to be quashed and set aside.

8.5 It is further submitted by the learned counsel that evenotherwise the High Court has committed grave error in passing theimpugned order on “Note for speaking to the Minutes” directing theAppellants/original Defendants to execute the Deed of Conveyance ofthe land to the extent of building i.e. 2700 sq. meters. It is submitted thatwhile passing the impugned order and directing the appellants the originalDefendant No. 1 to execute the Deed of Conveyance of the land to theextent of the building i.e. 2700 sq. meters, the High Court has not at allconsidered the fact that as such the built up area of the building (A-1),even as per the original Plaintiff was admeasuring 1009 sq. meters (1205sq. yards).

8.6 It is further submitted that as such the built-up area of thebuilding A-1 was admeasuring 1009 sq. meters even as per the Planapproved and the Suit was filed only to execute the Deed of Conveyanceto the extent of area of the building. It is submitted that, therefore, alsothe High Court has committed grave error in directing to execute theDeed of Conveyance to the extent of building i.e. 2700 sq. meters.

8.7 It is submitted by learned counsel that even otherwise it is notappreciable how the High Court has arrived at the figure of 2700 sq.meters. It is submitted that even that was not the case on behalf of theplaintiffs.

8.8 It is further submitted by the learned counsel that even theaverments made in the Plaint, the Plaintiffs so stated in paragraph 18,that the total built-up area of building of A-1 is around 1205 sq. yards(wrongly stated as 1205 sq. meters). It is submitted that in paragraph 18the Plaintiffs specifically stated and it was the specific case that originalPlaintiffs and/or the Society to be formed by the flat purchasers areentitled to an area of land corresponding to the built-up area of the buildingso constructed on such land utilizing the FSI permissible at the relevanttime. It is submitted that it was specifically stated in paragraph 18 in thePlaint that the Plaintiffs are entitled to a minimum plot area of around1205 sq. yards (wrongly stated as 1205 sq. meters) or thereabout. It issubmitted that, therefore, the impugned orders passed by the High Court A

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Adirecting to execute the Deed of Conveyance to the extent of 2700 sq.meters is beyond even the case on behalf of the Plaintiffs so pleaded inthe Plaint.

8.9 Taking us to the reply filed on behalf of the MunicipalCorporation, it is vehemently submitted by learned counsel that evenBaccording to the Corporation as per approved layout plan, CTS No. 97/A-5/2 on which building A-1 on the total area of 1009 sq.meters wasconstructed was total measuring 2593.70 sq. meters. It is submitted,therefore, in any case, how the High Court has arrived at the figure of2700 sq. meters is not at all appreciable. It is submitted that when theentire plot bearing CTS No. 97/A-5/2, as per the approved layout planCwas of 2593.70 sq. meters on which building A-1 was constructedadmeasuring 1009 sq. meters, there is no question of executing the Deedof Conveyance more than that more particularly 2700 sq. meters asdirected by the High Court while passing the impugned order on “Notefor speaking to the Minutes”.

D8.10 It is further submitted by the learned counsel that even whilepassing the decree and allowing the Suit, the learned Trial Courtspecifically directed the original Defendant No. 1 to convey the title andexecute documents in favour of the Society in respect of the Suit buildingand the land to the extent of Suit building as shown in the Plans i.e. 1009Esq. meters. It is submitted, therefore, while dismissing the appeal preferredby the Appellants, the High Court could not have passed any order beyondthe decree passed by the learned Trial Court, more particularly, whenthe original Plaintiffs neither filed any cross objection nor preferred anyappeal.

F8.11 It is further submitted by learned counsel that even the originalPrivate Defendants used the FSI corresponding to the built-up area ofthe building A-1 i.e. 1009 sq. meters. It is further submitted that whatwas sold/sought to be conveyed to the original Plaintiffs/Occupiers wasthe building A-1 admeasuring 1009 sq. meters only. It is submitted,therefore, that they could not have sought any relief beyond the areaGadmeasuring 1009 sq. meters. It is submitted, therefore, as such theyrightly averred in the Plaint that they are entitled to the Deed ofConveyance to the extent of the land of the building i.e. 1009 sq. meters.It is submitted, therefore, even the learned Trial Court also while passingthe Decree directed to execute the Deed of Conveyance accordingly.

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8.12 The learned counsel appearing on behalf of the Appellantshave taken us to the layout plans and had submitted that on the plotbearing CTS No. 97/A-5/2 other three buildings were also to beconstructed over and above building A-1, however, during the pendencyof litigation under the Urban Land Ceiling Act, further construction wasnot made. It is submitted that, therefore, at the most original Plaintiffshall be entitled for execution of the Deed of Conveyance to the extentof 1009 sq. meters only, that is the land on which building A-1 wasconstructed which was sold to the original Plaintiffs and its Members.

8.13 Making the above submission made by Shri C.A. Sundaram,learned Senior Advocate appearing on behalf of the Appellant hasrequested to allow present Appeals and quash and set aside the impugnedorders passed by the High Court.

9. Shri Shyam Divan, learned Senior Advocate appearing on behalfof the Appellants in Civil Appeals arising out of the SLP(Civil) No. 15056of 2016 has reiterated what was submitted by Shri Sundaram, learnedSenior Advocate appearing on behalf of the Appellants in Civil Appealsarising out of SLP (Civil) Nos.10093-94 of 2016. He has further submittedthat as such the order passed by the Divisional Registrar directing ofdeemed Conveyance of the land to the extent of 2593.70 sq. meters isas such based upon and relying upon the order passed by the High Courtbelow the “Note for speaking to the Minutes” (the impugned order beforethis Court). It is submitted that, therefore, once the impugned orderpassed by the High Court passed below the “Note for speaking to theMinutes” is set aside, as prayed for by the Appellants, the order passedby the Divisional Registrar confirmed by the High Court wouldautomatically go. It is submitted that even otherwise, even on meritsalso the order passed by the Divisional Registrar of deemed Conveyanceof the land to the extent of 2593.70 sq. meters is not sustainable and isactually illegal. It is submitted that, therefore, the High Court ought tohave allowed the writ petition preferred by the appellants.

9.1 Making above submission it is requested to allow the presentappeals and quash and set aside the order passed by the High Courtdismissing the Writ Petition confirming the order of deemed Conveyanceof the land to the extent of 2593.70 sq. meters passed by the DivisionalRegistrar.

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A10. All these appeals are vehemently opposed by Shri NeerajKishan Kaul, learned Senior Advocate, Shri P.S. Patwalia, learned SeniorAdvocate and Shri R.P. Bhatt, learned Senior Advocate appearing onbehalf of the original Plaintiffs.

10.1 Learned counsel appearing on behalf of the original PlaintiffsBhave vehemently submitted that, in the facts and circumstances of thecase, no error has been committed by the High Court in passing theimpugned order on “Note for speaking to the Minutes”. It is vehementlysubmitted by learned counsel appearing on behalf the original Plaintiffsthat when it was pointed out to the High Court that while disposing ofthe appeal, though there was specific observation in paragraphs 8 and 9Cthat the Deed of Conveyance is to be executed for 2700 sq. meters,while passing the operative portion of the order there was no specificreference to the area of the land and, therefore, when the same waspointed out by submitting “Note for speaking to the Minutes”, the sameis rightly corrected by the High Court by passing the impugned order. ItDis submitted that the impugned order on the “Note for speaking to theMinutes”, as such can neither be said to be either wholly withoutjurisdiction as contended on behalf of the Appellants nor it can be said tobe an order reviewing/modifying earlier order passed in First Appeal.

10.2 It is vehemently submitted by learned counsel for the originalEPlaintiffs that even in the prayer clause in the Suit, in paragraph 37(vi), itwas prayed to direct the original Defendant No. 1 to convey the saidbuilding A-1 together with the plot of land J-1. It is submitted that thebuilding A-1 might have been constructed on the land admeasuring 1009sq. meters, however, the entire plot was admeasuring 2593.70 sq. meters.It is submitted that, therefore, the Suit was for 2593.70 sq. meters ofFland. It is submitted that even the Defendants’ witness-DW-1-Omprakash Didwanja in his cross-examination specifically admitted thatthe Suit building has been constructed on the plot of land admeasuring2573.31 sq. meters. It is submitted that, therefore, the High Court hasnot committed any error in directing the Appellant-original DefendantGNo. 1, to execute the deed of Conveyance of the land to the extent ofthe plot area. However, the learned counsel appearing on behalf of theoriginal Plaintiffs are not in a position to satisfy how the High Court hasarrived at the figure of 2700 sq. meters of the land for which theDefendant No. 1 is directed to execute the Deed of Conveyance. It issubmitted that, in any case, the original Defendant No. 1 is required toH

execute the Deed of Conveyance of the land total admeasuring 2593.70sq. meters which is the area of the plot.

10.3 It is further submitted by learned counsel that, as such, theoriginal Defendants constructed the building A-1 only and it is an admittedposition that, thereafter, no construction has been made on the remainingland of the plot. It is submitted that even the original Defendant No. 1used the FSI of the total area of the plot. It is submitted that, therefore,the original Defendant No. 1 has to execute the Deed of Conveyance ofthe land to the extent of at least 2593.31 sq. meters. It is submitted thateven the Divisional Registrar also, not only on the basis of the orderpassed by the High Court impugned in the present appeals, even onconsidering the materials on record, passed an order of deemedConveyance of the land to the extent of 2593.31 sq. meters.

10.4 Making above submissions and relying upon the layout planssanctioned by the Corporation, it is requested to dismiss the presentappeals. The learned Senior Advocate appearing on behalf of the originalPlaintiffs has submitted that even by the impugned orders the High Courthas passed in favour of the Appellants herein to the extent allowing theadditional FSI.

11. Heard the learned counsel appearing on behalf of the respectiveparties at length. We have also gone through the impugned order passedby the High Court passed below the “Note for speaking to the Minutes”.While passing the impugned order, the High Court has directed theAppellants herein to execute the Deed of Conveyance of the land to theextent of the building i.e. 2700 sq. meters in favour of the original Plaintiffsand/or the Society. It is also required to be noted that while passing theimpugned order in Civil Application No.1698 of 2015 in First AppealNo.466 of 2010, in which it was requested by the Appellants herein tomodify the order dated 23.12.2014 passed below the “Note for speakingto the Minutes”, the High Court has even further clarified that theAppellants herein are entitled to consume balance FSI of plot of land.Therefore, in short, the orders passed by the High Court passed below“Note for speaking to the Minutes” in First Appeal No.466 of 2010 andthe order passed in Civil Application No.1698 of 2015 in First AppealNo.466 of 2010 are impugned in the present appeals. Therefore, theshort question posed for the consideration of this Court is whether suchan order/orders could have been passed by the High Court below the“Note for speaking to the Minutes”?

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888 SUPREME COURT REPORTS [2018] 14 S.C.R.

A12. Having heard the learned counsel for the respective partiesand considering the impugned order passed by the High Court passedbelow the “Note for speaking to the Minutes”, we are of the opinion thatwhile passing such order below the “Note for speaking to the Minutes”,the High Court has travelled beyond its jurisdiction in regard to the scopeof deciding a “Note for speaking to the Minutes”. A “Note for speakingBto Minutes” is required to be entertained only for the limited purpose ofcorrecting a typographical error or an error through oversight, whichmay have crept in while transcribing the original order. Once, thejudgment/order is pronounced and if any party to the same wants anyrectification of any typographical error and any clerical mistake regardingCthe date or number, such a party may apply to the concerned Court forcorrecting such an error in the judgment/order. However, a “Note forspeaking to the Minutes” cannot be considered at par with a reviewapplication or in a given case, with an application for clarification/modification of an order. A “Note for speaking to the Minutes” can never be considered to be an application of such a nature. While passingDthe impugned order below the “Note for speaking to the Minutes”, theHigh Court has virtually modified its original order passed in First Appeal.While passing the impugned order, the High Court has given furtherdirections as if the High Court is passing the order on an application forclarification/modification. Therefore, such a course was not open to theEHigh Court while deciding a “Note for speaking to the Minutes”. Since,the High Court has travelled beyond its jurisdiction in regard to the scopeof deciding a “Note for speaking to the Minutes”, we have no option butto set aside the impugned order passed below the “Note for speaking tothe Minutes”.F12.1 Even otherwise, the impugned orders are not sustainable atlaw. It is required to be noted that it was the Appeal before the HighCourt, preferred by the Appellants herein–original Defendants, challengingthe judgment and decree passed by the learned Trial Court, by which thelearned Trial Court specifically passed a decree directing the onlyDefendant No.1 to convey the title and execute document in favour ofGthe Society in respect of Suit Building and land to the extent of SuitBuilding. The Suit Building, from the material on record, it is emergingthat the area of the building was 1009.70 sq. meters. Against that judgmentand decree, original Private Defendants-Appellants were before the HighCourt. The Trial Court never passed any decree directing the AppellantsHto execute the Deed of Conveyance to the extent of 2700 sq. meters of

land. Therefore, while dismissing the appeal, even otherwise, the HighCourt could not have passed any further order beyond the judgment anddecree passed by the Trial Court and that too in absence of any crossobjection and/or cross appeal preferred by the original Plaintiffs. In anAppeal preferred by the original Defendants, as observed above, at themost, the High Court can dismiss the Appeal and confirm the judgmentand decree. However, the Appellants-original Defendants cannot beput in a worse condition than beyond the judgment and decree passed bylearned Trial Court which was appealed before the First Appellant Courtand that too in the absence of any cross-appeal or cross objection by theoriginal Plaintiffs. Therefore also, the impugned orders passed by theHigh Court which, as such, will go beyond the judgment and decreepassed by the learned Trial Court are not sustainable, more particularly,in absence of any cross-appeal and/or order the cross objection by theoriginal Plaintiffs. Once the High Court has dismissed the Appealpreferred by the Appellants-original Defendants, in that case, in an appealpreferred by the original Defendant, the High Court could not have passedany further order beyond the judgment and decree passed by the learnedTrial Court appealed. Thus, by passing the impugned order, it can besaid that the High Court has passed order beyond the scope and ambitof the Appeal before it and has exceeded in its jurisdiction not vested init.

12.2 Even otherwise, it is not appreciable how the High Court hasarrived at the figure of 2700 sq. meters. It appears from the material onrecord that it was never the case on behalf of the original Plaintiffs thatthe original Defendant No.1 shall execute the Deed of Conveyance ofthe land to the extent of 2700 sq. meters. Even considering the mapsanctioned by the Corporation and even considering the reply filed bythe Corporation before this Court, it appears that the total plot area ofCTS No. 97/A-5/2 on which the building A-1 was constructed, was2593.70 sq. meters, out of which there was a construction of building A-1 on the land admeasuring 1009.70 sq. meters. Therefore also, theimpugned order passed by the High Court directing the Appellants herein-original Defendant No.1 to execute the Deed of Conveyance in respectof the land to the extent of 2700 sq. meters is not sustainable.

12.3 Even otherwise, it is required to be noted that in the Plaint/Suit before the Trial Court it was specifically averred by the Plaintiffsthat:

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Ai) Building occupies by the Plaintiffs are consisting of ground plusfour storeys and the total built-up area is 1205 sq. meters;

ii) That under the provisions of law, the Plaintiffs and/or the Societyto be formed by the flat purchasers are entitled to an area of landcorresponding to the built-up area of the building so constructedBon such land utilizing the FSI permissible at the relevant time;

iii) The Plaintiffs are entitled to a minimum plot are of around1205 sq. yards.

It cannot be disputed that the building A-1 was constructed on theland admeasuring 1205 sq. yards-1009.70 sq. meters and that wasCthe total built-up area of building A-1 which was occupied by thePlaintiffs.

The Plaintiffs, therefore, cannot go beyond the averments andpleadings in the Plaint. Therefore, the Plaintiffs could not haveeven asked for the execution of the Deed of Conveyance in respectDof the land beyond the built-up area of building A-1, moreparticularly, when the Allottees/original Plaintiffs can claim therights with respect the building A-1 only.

12.4 The learned counsel appearing on behalf of the originalPlaintiffs have heavily relied upon the cross-examination of DW-1EOmprakash Didwanja and have submitted that the Defendants’ witnessspecifically admitted that the Suit building has been constructed on theplot of the land admeasuring 2573.31 sq. meters and, therefore, thePlaintiffs were entitled to the Deed of Conveyance with respect to theentire plot of land 2573.31 sq. meters. The same has no substance.There is a difference and distinction between the built-up area of buildingFand the plot area. As observed above, the Plaintiff specifically averredand pleaded in paragraphs 18 that they are entitled to an area of landcorresponding to the built-up area of the building so constructed on suchland. Therefore also, the High Court is not justified in directing DefendantNo.1 to execute the Deed of Conveyance with respect to the landGadmeasuring to the extent of 2700 sq.meters.

12.5 In view of the above and for the reasons stated above, theimpugned orders passed by the High Court dated 23.12.14 passed below“Note for speaking to the Minutes”, in First Appeal No.466/2010 andthe order dated 04.07.15 passed in Civil Application No.1698/2015 in H

First Appeal No.466/2010 deserve to be quashed and set aside and theCivil Appeals arising out of the said orders are required to be allowed.

13. So far as the Appeals arising out of the impugned judgmentand order passed by the High Court dated 10.09.2015 in WP© No.992/2015 is concerned, it appears that the Divisional Registrar of the Co-operative Societies has passed an order of deemed Conveyance of thearea admeasuring 2593.70 sq. meters, which was the subject matter inthe Writ Petition before the High Court and the High Court by impugnedjudgment and order has dismissed the Writ Petition confirming the orderpassed by the Divisional Registrar granting deemed Conveyance of thearea admeasuring 2593.70 sq.meters.

13.1 Having heard the learned counsel for the respective partiesand considering the order passed by the Divisional Registrar of deemedConveyance of the area admeasuring 2593.70 sq.meters, it appears thatthe Divisional Registrar considered the orders passed by the High Courtbelow “Note for speaking to the Minutes”’ in the First Appeal as well assolely relying upon the property card. However, as observed hereinabove,while deciding the Appeals arising out of the order passed by the HighCourt below “Note for speaking to the Minutes”, the original Plaintiff-Society shall not be entitled to the Deed of Conveyance to the extent ofarea admeasuring 2700 sq.meters and/or even 2593.70 sq.meters andthey shall be entitled to the Deed of Conveyance of the area admeasuring1009.70 sq.meters which was the built up area of building A-1 and,therefore, for the reasons stated hereinabove, the impugned judgmentand order passed by the High Court dated 10.09.2015 in Writ Petition ©No.992/2015 confirming the order passed by the Divisional RegistrarCo-operative Societies of deemed Conveyance of the area admeasuring2593.70 sq.meters also deserves to be quashed and set aside and theAppeals arising out of the impugned orders passed by the High Court inW.P. No. 992 of 2015 deserves to be allowed.

14. In view of the above and for the reasons stated above, allthese appeals succeed and are hereby allowed. The impugned ordersdated 23.12.2014 passed by the High Court of Bombay passed below“Note for speaking to the Minutes” in First Appeal No.466/2010 as wellas the impugned order dated 04.07.2015 passed by the High Court ofBombay in Civil Application No.1698 of 2015 in First Appeal No.466/2010 are hereby quashed and set aside.

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A15. The impugned judgment and order passed by the High Courtof Bombay dated 10.04.2015 in Writ Petition (C) No.992/2015 confirmingthe order passed by the Divisional Registrar of the Co-operative Societiesof deemed Conveyance of the area admeasuring 2593.70 sq.meters isalso hereby quashed and set aside and consequently the order passed bythe Divisional Registrar of Deemed Conveyance of the area admeasuringB2593.70 sq.meters is hereby quashed and set aside and it is directed andthe same is modified to the extent of granting deemed Conveyance ofthe area admeasuring 1009.70 sq.meters only. The Appeals stand disposedof accordingly.

16. In the facts and circumstances of the cases, there will be noCorder as to costs. In view of the disposal of the Appeals, the ContemptPetitions as well as the interlocutory application pending, if any, shallalso stand disposed of.

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Divya Pandey

Matters disposed of.

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