Case Note & Summary
The case involves two writ petitions and a civil application arising out of a property dispute regarding two flats on the seventh floor of Flushel Apartments, Bandra, Mumbai. The original suit was filed by Miss Prabha Ganpat Borkar against M/s Drego Enterprises, a partnership firm, alleging threat of dispossession and seeking an injunction. In the suit, a consent decree was passed on 16 September 2012 based on terms filed by the respondent and one Mr. Shamsuddin Kasamali Qureshi, who claimed to be the constituted attorney of the firm. Subsequently, the petitioner in the first writ petition, Shri Horace Kevin Gonsalves, who claimed to have purchased the flats from the firm's partner, filed Miscellaneous Application No. 20 of 2012 seeking to stay the consent decree and for other reliefs, which was dismissed by the trial court on 9 May 2013. The petitioner also filed a civil application seeking appointment of a court receiver. The second writ petition was filed by the firm itself, challenging the order dated 17 June 2013 in Miscellaneous Application No. 4 of 2013, which rejected its application to set aside the consent terms and decree. The petitioners alleged that Mr. Qureshi had no valid power of attorney from Mr. Peter Drego, a missing partner, and that the consent was fraudulently obtained. The High Court heard both matters together and disposed of them by a common order. The facts recorded indicate that the suit premises were originally retained by the firm for family members, and the petitioner claimed ownership through a registered sale agreement dated 16 November 2006 and subsequent transfer by the co-operative society. The respondent claimed to have been in possession since 2002. The core dispute relates to the validity of the consent decree and the authority of the person who consented on behalf of the firm.
Issue of Consideration
Challenge to the orders dated 09.05.2013 and 17.06.2013 passed by the Bombay City Civil Court in Miscellaneous Application No. 20 of 2012 and Miscellaneous Application No. 4 of 2013, respectively, in a suit for injunction involving consent terms and decree.
Case Details
2015 LawText (BOM) (01) 48
Civil Writ Petition No. 4797 of 2013 with Civil Application No. 2116 of 2014, and Civil Writ Petition No. 11790 of 2013
Ms. Archana Khan (for petitioner in WP 4797/2013), Mr. B.M. Chatterjee (for petitioner in WP 11790/2013 and respondent no.2 in WP 4797/2013), Mr. S.K. Shinde (for respondent in WP 11790/2013 and respondent no.1 in WP 4797/2013)
Shri Horace Kevin Gonsalves (WP 4797/2013) and M/s Drego Enterprises (WP 11790/2013), with Civil Application filed by Shri Horace Kevin Gonsalves
Miss Prabha Ganpat Borkar (respondent no.1 in WP 4797/2013 and sole respondent in WP 11790/2013) and M/s Drego Enterprises (respondent no.2 in WP 4797/2013)
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Civil writ petitions challenging orders passed by the trial court in miscellaneous applications arising from a property suit where a consent decree was obtained.
Remedy Sought
In WP 4797/2013: stay of the consent decree dated 14 September 2012 and other reliefs; in Civil Application: appointment of court receiver; in WP 11790/2013: setting aside the consent terms and decree dated 16 September 2012.
Filing Reason
The petitioners allege that the consent decree was obtained fraudulently by a person without valid authority to represent the defendant firm, and that the petitioners' rights over the suit property were affected.
Previous Decisions
The Bombay City Civil Court at Dindoshi, by order dated 9 May 2013, dismissed Miscellaneous Application No. 20 of 2012 filed by Horace Kevin Gonsalves seeking stay of the consent decree. By another order dated 17 June 2013, the same court rejected Miscellaneous Application No. 4 of 2013 filed by M/s Drego Enterprises to set aside the consent terms and decree.
Issues
Whether the order dated 9 May 2013 dismissing the application for stay of the consent decree was correct in law and on facts.
Whether the order dated 17 June 2013 rejecting the application to set aside the consent terms and decree was proper.
Judgment Excerpts
The petitioner in Writ Petition No. 4797 of 2013 has filed civil application inter alia praying for appointment of the court receiver and for other reliefs in respect of the suit flats.
It is the case of the petitioner that the said Mr.Shamsuddin Kasamali Qureshi who fraudulently claimed himself to be an alleged constituted attorney of the said M/s.Drego Enterprises did not file any power of attorney alleged to have been issued in his favour by Mr.Peter Drego.
It is the case of the petitioner that on 1 st October, 2012 the respondent no.1 tried to break into the suit premises but was prevented by the society members.
Procedural History
Respondent no.1 filed Short Cause Suit No. 1835 of 2012 in Bombay City Civil Court at Dindoshi against M/s Drego Enterprises seeking injunction. On 16 September 2012, the respondent and the alleged constituted attorney of the defendant firm filed consent terms and a consent decree was passed. Subsequently, Shri Horace Kevin Gonsalves filed Miscellaneous Application No. 20 of 2012 seeking stay of the consent decree, which was dismissed on 9 May 2013. M/s Drego Enterprises filed Miscellaneous Application No. 4 of 2013 seeking to set aside the consent terms and decree, which was rejected on 17 June 2013. Aggrieved, both parties filed writ petitions in the High Court: WP 4797/2013 (by Gonsalves) and WP 11790/2013 (by Drego Enterprises). Gonsalves also filed Civil Application No. 2116 of 2014 seeking appointment of court receiver. Both writ petitions were heard together and disposed of by a common order.
