(PER : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. The present appeal is directed against the judgment and order passed by the learned Single Judge of this Court dated 29.08.1998 in Special Civil Application No.13/98 whereby the learned Single Judge has modified the award passed by the Tribunal by observing that instead of specific performance of the contract and direction to hand over the possession, the same would be substituted by the award of compensation of Rs.3 lakhs to be paid by the petitioners to the respondent no.1 in installments as mentioned in para 16 of the said judgment.
2. We have heard Mr. Kogje, learned counsel appearing for the appellant and Mr. Chhatrapati for respondents no.1 and 2original petitioners.
3. After the matter was argued and deliberated for some time, the learned counsel appearing for both the sides have placed on record the consent terms arrived at between the original petitioners and the original respondent no.1appellant herein. The said consent terms is taken on record and it reads as under:
“ Consent Terms
1. The Registrar, High Court shall immediately upon disposal of this Appeal, take steps to encash the fixed deposit in respect to the money deposited with this Hon’ble Court, by the Respondent Nos.1 and 2. The amount so available shall be immediately communicated to the Respondents Nos.1 and 2 through their Advocates.
2. That during the final hearing of the Appeal, the parties have arrived at a amicable solution which is reduced to writing in the form of following Terms.
3. The Respondents Nos.1 and 2 represented through their legal heirs hereby agree to pay to the Appellant an amount of Rs.8,00,000/ (Rs. Eight Lacs only) towards the full and final settlement of the dispute. The amount of eight lacs includes the amount deposited by the Respondents with the Hon’ble Court. Accordingly,the Respondent Nos.1 and 2 shall pay to the Appellant, as agreed herein, the amount being the difference between Rs. 8 lacs and the amount aggregating the principal and interest accrued, on the money deposited with this Hon’ble Court. This aggregate amount of the principal and interest accrued lying deposited with the Hon’ble high court shall be paid by the Registrar, High Court directly to the Appellant.
4. The Respondent Nos.1 and 2 shall make the full payment within period of three months from today.
5. The Appellant here by withdraws the Appeal unconditionally.
6. The direction in the order of single judge in paragraph 21 shall continue to operate reserving for the Respondent Nos.1 and 2, the liberty and rights contained therein.
7. The dispute is thus settled in aforementioned terms.”
4. It has been prayed by the respective advocates that the appeal may be disposed of by this Court with the further observation that in the event there is any breach, the appellant should be at the liberty to resort to appropriate proceedings for ensuring compliance or some additional cost or the interest and other proceedings as this Court may find it proper and if the aforesaid consent terms are taken on record and the judgment of the learned Single Judge is modified to that extent, the appellant and the respondents no.1 and 2 would be satisfied since in any case, on behalf of the society, though Mr. Pandya has filed his appearance, nobody has made any submission.
5. We find that essentially the dispute is between the appellant and the respondents no.1 and 2 hereinoriginal petitioners and if the amount of compensation is enhanced to Rs. 8 lakhs by now, as agreed between the parties, the same would meet with the ends of justice.
6. It also appears that the learned Single Judge of this Court has exercised the discretion for awarding of compensation in view of the facts and circumstances of the case instead of the specific performance of the contract as was ordered by the learned nominee and its communication thereof by the Tribunal.
7. Hence, we are inclined to pass the following order:
(1) The judgment of the learned Single Judge is not interfered with for awarding of the compensation in place of specific performance of the contract, but, it shall be modified to the effect that instead of Rs.3 lakhs as the compensation, the amount as on today of compensation shall be Rs.8 lakhs. Such amount shall be paid by the respondents 1 and 2 within a period of three months from today. It is also observed that the amount deposited with this Court with the accrued interest based on the order of the learned Single Judge pending the appeal, shall be adjusted and given setoff and the appellant shall be at the liberty to withdraw the said amount. The undertaking shall be filed for compliance to the aforesaid payment total of Rs.8 lacs by respondents no.1 and 2 within four weeks.
(2) The remaining amount shall be deposited by the respondents 1 and 2 with this Court or shall be paid to the appellant by DD/Bankers Cheque within the aforesaid outer limit of three months. In the event the amount is deposited with this Court, the appellant shall be at the liberty to withdraw the amount from this Court.
(3) We also find it proper to observe that in the event there is failure on the part of respondents no.1 and 2original petitioners to deposit the amount, or any portion thereof, they shall be required to pay the interest at the rate of 15% p.a. on the unpaid amount until the amount is actually paid. It is also observed that the respondents no.1 and 2original petitioners shall file an undertaking before this Court that they shall pay or deposit the entire amount of Rs. 8 lakhs minus the amount already deposited with the accrued interest within the outer limit.
(4) In the event after filing of the undertaking there is any breach on the part of the respondents no.1 and 2, the appellant shall be at the liberty to initiate proceedings for breach of the undertaking or otherwise as may be permissible in law.
8. The appeal is partly allowed to the aforesaid extent. No order as to costs.
9. It will be open to the appellant and/or respondents no.1 and 2 to get the information from the office about the total amount deposited and accrued interest so as to enable the respondents no.1 and 2 to know the exact amount to be deposited and also for the appellant for the purpose of withdrawal. It will be open to the office to encash the amount already deposited with the accrued interest for compliance of the order of this Court.
(JAYANT PATEL, J.) BIJOY (MOHINDER PAL, J.)