Supreme Court clarifies the scope of “Note for Speaking to the Minutes” in property disputes: Akhil Bhartvarshiya Marwari Agarwal Jatiya Kosh & Ors vs Brijlal Tibrewal & Ors (2018) INSC 999 (14 December 2018)

Date of the Judgment: 14 December 2018

Citation: (2018) INSC 999

Judges: A.K. Sikri, Ashok Bhushan, M. R. Shah, JJ.

Can a court modify its final order through a “Note for Speaking to the Minutes”? The Supreme Court of India recently addressed this critical question in a property dispute, clarifying the limited scope of such applications. This case revolves around a dispute over the extent of land to be conveyed to flat purchasers, highlighting the importance of adhering to established legal procedures. The judgment was delivered by a three-judge bench comprising Justices A.K. Sikri, Ashok Bhushan, and M. R. Shah, with the majority opinion authored by Justice M.R. Shah.

Case Background

The case involves a trust, Akhil Bhartvarshiya Marwari Agarwal Jatiya Kosh (the Trust), which acquired land in Mumbai in 1974 with the charitable objective of providing housing to weaker sections of society. This land included a plot bearing CTS No. 97/A-5/2, admeasuring 2593.70 sq. meters. The Trust obtained sanction for constructing a building (A-1) on a sub-plot of this land, which was to consume 1009.70 sq. meters. Between 1975 and 1978, the Trust constructed building A-1, comprising 20 flats, and the purchasers took possession of their respective flats.

In 2004, the flat purchasers (Respondents) filed a suit (Suit No. 4111 of 2004) seeking a direction to the Trust to execute the conveyance of Plot No. A/1, claiming they were entitled to the plot area of around 1205 sq. yards (1009.70 sq. meters). They also sought various other reliefs, including the completion of the building, obtaining an occupation certificate, providing municipal water supply, forming a cooperative housing society, and preventing further construction on the adjacent plot.

The Trust contended that they were the owners of the larger property (9797 sq. meters) and intended to develop it for the benefit of middle-class citizens. They stated that due to the declaration of the land as surplus under the Urban Land Ceiling Act, they could only complete one building. The Trust also argued they were entitled to consume the full FSI by putting up additional construction for charitable purposes before conveying the property.

Timeline

Course of Proceedings

The Trial Court decreed the suit, directing the Trust to execute agreements with flat purchasers, complete the building, obtain an occupation certificate, provide municipal water supply, form a cooperative housing society, and convey the title of the building and land to the extent of the building as shown in the plans. The Trial Court also stated that the Trust was entitled to the balance FSI of the land.

The original Defendants (except the Corporation) appealed to the High Court (First Appeal No. 466 of 2010). During the pendency of the appeal, the flat purchasers registered a society, Agrasen Co-operative Housing Society Ltd. The High Court dismissed the appeal on 04.12.2014, directing the execution of the conveyance deed of the land to the extent of the building within nine months.

Subsequently, the Trust filed a reply before the Divisional Registrar stating that the Respondents were entitled to the conveyance of land measuring 1009 sq. meters only. The High Court, on an oral application by way of “Note for speaking to the Minutes”, clarified that the words “2700 sq. feet” should be read as “2700 sq. meters”. The High Court further modified its earlier order and directed the execution of the deed of conveyance of the land to the extent of the building i.e., 2700 sq. meters.

The Divisional Registrar, based on the High Court’s order, passed an order granting deemed conveyance of the area admeasuring 2593.70 sq. meters. The Trust then filed a Civil Application (No. 1698 of 2015) seeking modification of the direction to execute the conveyance deed to the extent of 2700 sq. meters. Simultaneously, they also filed a Writ Petition (No. 992 of 2015) challenging the order of deemed conveyance.

The High Court dismissed the Civil Application but clarified that the appellants were entitled to consume the balance FSI of the plot of land. The High Court also dismissed the Writ Petition, confirming the order of deemed conveyance for the area admeasuring 2593.70 sq. meters.

Legal Framework

The case primarily revolves around the interpretation and application of the Maharashtra Ownership Flats Act, 1963 (MOFA). The Act governs the sale and management of flats in Maharashtra. Key provisions include:

• Section 4 of MOFA: This section mandates that a promoter must enter into an agreement with flat purchasers as prescribed under the Act. The agreement should specify details such as the nature of the building, amenities, and the land area to be conveyed.
• The Act also imposes a duty on the promoter to provide essential supplies and services, including water, electricity, and sanitary services.
• Further, the promoter is required to form a cooperative society of the flat purchasers.

Arguments

Appellants’ Arguments (Trust):

• The primary argument of the Appellants was that the High Court’s order dated 23.12.2014, passed on the “Note for speaking to the Minutes,” was without jurisdiction. They argued that such a note is only for correcting typographical errors or oversights, not for modifying the original order.
• The Appellants contended that the High Court, by directing the execution of a conveyance deed for 2700 sq. meters, effectively modified its earlier order and granted a relief not originally sought by the Plaintiffs or decreed by the Trial Court.
• They argued that the High Court could not have passed an order beyond the judgment and decree passed by the learned Trial Court, especially when the original Plaintiffs did not file any cross-objection or appeal.
• The Appellants also submitted that the built-up area of the building A-1 was only 1009 sq. meters, and the conveyance should be limited to that area. They further stated that the figure of 2700 sq. meters was not supported by any evidence or pleadings.
• The Appellants also argued that the original Plaintiffs were only entitled to the land corresponding to the built-up area of the building A-1, which was 1009 sq. meters.
• The Appellants stated that they were entitled to consume the full FSI of the land by putting up additional construction for charitable purposes.
• The Appellants relied on the decisions of the Gujarat High Court in Kotak Mahindra Bank Ltd. Vs. Official Liquidator of M/s. Gujrat BD Luggage Ltd. 2012 SCC Online Gujrat 4339 and the Bombay High Court in Artson Engineering Ltd. Vs. Indian Oil Corporation Ltd. 2015 SCC Online Bombay 39, to support their argument that a “Note for speaking to the Minutes” cannot be used to modify or review an earlier order.

Respondents’ Arguments (Flat Purchasers):

• The Respondents argued that the High Court rightly corrected the error in the original order through the “Note for speaking to the Minutes,” as there was a specific observation in paragraphs 8 and 9 of the judgment that the deed of conveyance was to be executed for 2700 sq. meters.
• They contended that the suit was for the conveyance of the entire plot of land, which measured 2593.70 sq. meters, and not just the built-up area of the building.
• The Respondents pointed out that the Defendants’ witness, Omprakash Didwanja, admitted in his cross-examination that the suit building was constructed on a plot of land measuring 2573.31 sq. meters.
• They argued that the Trust had used the FSI of the total area of the plot and, therefore, was required to execute the deed of conveyance for the entire plot.
• The Respondents also stated that the building A-1 was constructed on a plot of land admeasuring 2573.31 sq. meters.

Municipal Corporation’s Stand:

• The Municipal Corporation stated that as per the approved layout plan, CTS No. 97/A-5/2, where building A-1 was constructed, measured a total of 2593.70 sq. meters.

[TABLE] of Submissions by Parties

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the core issues that the Court addressed were:

1. Whether the High Court was justified in modifying its earlier order through a “Note for speaking to the Minutes.”
2. Whether the High Court could have passed an order beyond the judgment and decree passed by the Trial Court, especially in the absence of any cross-objection or appeal by the original Plaintiffs.
3. What is the extent of the land to which the original Plaintiffs/flat purchasers are entitled to a conveyance deed?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

On the Scope of “Note for Speaking to the Minutes”:

• Kotak Mahindra Bank Ltd. Vs. Official Liquidator of M/s. Gujrat BD Luggage Ltd. 2012 SCC Online Gujrat 4339, Gujarat High Court: This case was relied upon to emphasize that a “Note for speaking to the Minutes” is only for correcting typographical errors or oversights and cannot be used to modify or review an earlier order.
• Artson Engineering Ltd. Vs. Indian Oil Corporation Ltd. 2015 SCC Online Bombay 39, Bombay High Court: This case was also relied upon to support the argument that a “Note for speaking to the Minutes” cannot be used to modify or review an earlier order.

Legal Provisions Considered:

• Maharashtra Ownership Flats Act, 1963 (MOFA): The Court considered the provisions of MOFA, particularly Section 4, which requires the promoter to enter into an agreement with flat purchasers and specify the land area to be conveyed.

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Court relied on Kotak Mahindra Bank Ltd. Vs. Official Liquidator of M/s. Gujrat BD Luggage Ltd. [2012 SCC Online Gujrat 4339], Gujarat High Court, and Artson Engineering Ltd. Vs. Indian Oil Corporation Ltd. [2015 SCC Online Bombay 39], Bombay High Court, to conclude that a “Note for speaking to the Minutes” cannot be used to modify or review an earlier order.
• The Court considered the provisions of the Maharashtra Ownership Flats Act, 1963 (MOFA), particularly Section 4, to determine the obligations of the promoter.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following:

• The limited scope of a “Note for speaking to the Minutes,” which cannot be used to modify or review an earlier order.
• The principle that an appellate court cannot pass an order beyond the judgment and decree passed by the trial court, especially in the absence of a cross-appeal or objection.
• The fact that the original Plaintiffs’ claim was for the conveyance of land corresponding to the built-up area of building A-1, which was 1009.70 sq. meters.

[TABLE] of Sentiment Analysis of Reasons Given by the Supreme Court

Fact:Law Ratio

The Court’s reasoning was primarily based on legal principles and procedural rules, with a lesser emphasis on the specific facts of the case.

Logical Reasoning:

The Court rejected the High Court’s interpretation of the “Note for speaking to the Minutes,” stating that it cannot be used to modify or review an earlier order. The Court also emphasized that an appellate court cannot pass an order beyond the judgment and decree passed by the trial court, especially in the absence of any cross-objection or appeal by the original Plaintiffs.

The Court considered the specific averments made by the Plaintiffs in their plaint, which indicated that they were entitled to the area of land corresponding to the built-up area of the building. The Court also noted that the High Court had erred in arriving at the figure of 2700 sq. meters, as there was no basis for this figure in the pleadings or evidence.

The Court quoted from the judgment:

“A “Note for speaking to Minutes” is required to be entertained only for the limited purpose of correcting a typographical error or an error through oversight, which may have crept in while transcribing the original order.”

“While passing the impugned order below the “Note for speaking to the Minutes”, the High Court has virtually modified its original order passed in First Appeal.”

“The Plaintiffs, therefore, cannot go beyond the averments and pleadings in the Plaint.”

The Court did not find any dissenting opinions in the judgment.

The Supreme Court’s decision clarifies the limited scope of a “Note for speaking to the Minutes” and emphasizes the importance of adhering to established legal procedures. This decision also has implications for future cases involving similar disputes, particularly regarding the conveyance of land to flat purchasers.

Key Takeaways

• A “Note for speaking to the Minutes” cannot be used to modify or review an earlier order. It is only for correcting typographical errors or oversights.
• An appellate court cannot pass an order beyond the judgment and decree passed by the trial court, especially in the absence of a cross-appeal or objection.
• Flat purchasers are generally entitled to a conveyance deed for the land corresponding to the built-up area of their building.
• Promoters are obligated to comply with the provisions of MOFA, including the execution of agreements and the formation of cooperative societies.

This judgment sets a precedent for future cases involving similar issues and emphasizes the importance of adhering to established legal procedures and the limitations of “Note for Speaking to the Minutes”.

Directions

The Supreme Court directed that:

• The order passed by the Divisional Registrar of deemed conveyance of the area admeasuring 2593.70 sq. meters is quashed and set aside.
• The order is modified to the extent of granting deemed conveyance of the area admeasuring 1009.70 sq. meters only.

Development of Law

The ratio decidendi of this case is that a “Note for speaking to the Minutes” is a limited procedural tool that cannot be used to modify or review a substantive order. The judgment reinforces the principle that appellate courts cannot exceed the scope of the original decree in the absence of a cross-appeal or objection. This case also clarifies that flat purchasers are entitled to a conveyance deed for the land corresponding to the built-up area of their building, and not necessarily the entire plot area.

Conclusion

The Supreme Court allowed the appeals, setting aside the High Court’s orders that had modified the original decree through a “Note for speaking to the Minutes” and directed the execution of conveyance for 2700 sq. meters. The Court clarified that such a note is only for correcting errors, not for modifying orders. The Court further held that the flat purchasers were entitled to a conveyance deed for the land corresponding to the built-up area of their building, which was 1009.70 sq. meters. The Court also set aside the order of the Divisional Registrar of deemed conveyance of the area admeasuring 2593.70 sq. meters and modified it to 1009.70 sq. meters.