(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) Leave to join the heirs of deceased Maneklal Sakarchand Shah as per the cause title of Misc. Civil Application No.2152 of 2011 in First Appeal Nos.2915 and 2916 of 2010.
Admit.
Mr.Vora waives notice for all the legal heirs of deceased Maneklal Sakarchand Shah.
Both the First Appeals arise from the judgment and decree passed by the lower Court in Special Civil Suit No. 79 of 2001 as well as in Special Civil Suit No.121 of 2001 whereby Special Civil Suit No.79 of 2001 was dismissed and Special Civil Suit No.121 of 2001 was allowed to the extent that the defendant therein was directed to refund the amount of Rs.10 Lacs which was earnest money for contract in question.
We may record that the plaintiff of Special Civil Suit No.121 of 2001 has also preferred appeal against the very judgment and decree being First Appeal No.2518 of 2010 for the limited purpose of interest as was not awarded by the Civil Court in the decree. The said appeal had been admitted only for limited purpose and is also pending.
Present appeals are taken up for hearing. The learned counsel appearing for both the sides declared before the Court that respective clients are agreeable on the following terms for settlement of the whole dispute.
(i) The amount of earnest money of Rs.10 Lacs, as per the judgment and decree of the trial Court in Special Civil Suit No.121 of 2001, has already been paid.
(ii) Additionally, the defendant of Special Civil Suit No.121 of 2001, the appellant herein, shall pay the amount of Rs.7,50,000/- to the defendants being legal heirs of deceased of Maneklal Sakarchand Shah in two installments i.e. Rs.3 Lacs shall be paid within 6 weeks and the remaining amount of Rs.4,50,000/- shall be paid within 6 weeks thereafter.
(iii) It is further agreed that the amount shall be deposited by the appellant with this Court of both the installments. After the amount is deposited, it would be open to the respondents to move this Court for withdrawal of the amount. The aforesaid amount of Rs.7,50,000/- shall be treated as full and final settlement for settling the dispute between both the sides. The appeal preferred by the respondent-original plaintiff of Special Civil Suit Nos. 121 of 2001 shall be withdrawn by them within a period of two weeks after putting the copy of the order in the present appeal before the appropriate Court by reserving the rights in accordance with law for appropriate action in the event the amount as aforesaid is not deposited or paid as the case may be.
Both the counsels pray that the decree be modified in terms of the aforesaid declaration made and recorded herein above.
Mr.Viral Vyas, for Mr.Ashish Dagli, learned counsel states that his client Tulsidas Pragji Thakkar through the power of attorney Ghanshyam Tulsi Thakkar is present in the Court and he has conveyed the instructions of the aforesaid agreement between the parties.
It appears to us that as such, it was a dispute for specific performance of contract and on account of earthquake building came to be demolished. In any event, the earnest money was already ordered to be refunded and the dispute was for interest and/or the other relief in accordance with law.
Considering the facts and circumstances, if the aforesaid declaration and settlement made between the parties are allowed to be acted upon, it would put an end to the litigation between both the sides. Nothing adverse is brought to our notice for dis-entitling the parties to record the settlement.
Hence, the following order.
Both the parties are directed to act as per the declaration made and the recorded herein above in terms of para No.6. The decree of the trial Court be modified accordingly. Both the appeals are disposed of accordingly. Liberty to apply for either side in case of difficulty.
(JAYANT PATEL, J.) (PARESH UPADHYAY, J.) (ashish) Top