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CA/14104/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR STAY No. 14104 of 2010
In
FIRST
APPEAL No. 3674 of 2010
=========================================================
KUMUDBEN
PRAVINBHAI BHAVSAR & 1 - Petitioner(s)
Versus
VIRENDRA
LALBHAI JAIN & 3 - Respondent(s)
=========================================================
Appearance
:
MR
DHAVAL D VYAS for
Petitioner(s) : 1 - 2.
MR BHARAT T RAO for Respondent(s) : 1,
MR
SATYAM Y CHHAYA for Respondent(s) : 1,
RULE SERVED for
Respondent(s) : 2
MR MEHUL S SHAH for Respondent(s) : 3 - 4.
MR
SURESH M SHAH for Respondent(s) : 3 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 02/05/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
1. The present
application is for interim injunction pending the First Appeal
against the judgment and decree passed by the trial Court for
specific performance of the contract.
2. We have heard
Mr. Vyas, Ld. Counsel for the applicant – appellant, Mr. Joshi,
Ld. Counsel with Mr. Chhaya for respondent no. 1 and Mr. Mehul Shah,
Ld. Counsel for respondent nos. 3 and 4. Respondent no. 2 is served,
but none appeared on his behalf.
3. The appeal has
already been admitted earlier vide order dated 1/12/2010. If the
sale-deed is allowed to be executed, it will create irreversible
situation and hence the judgment and
the decree of the
trial Court to that extent deserves to be stayed. As such, by
ad-interim order, it was stayed and, therefore, the said ad-interim
order deserves to be confirmed, subject to the modification as stated
hereinafter.
4. However, matter
does not end there, reason being that status of the property, pending
the appeal, would be required to be maintained. At the same time, it
further appears that to show the readiness and willingness, the
respondent no. 1 – original plaintiff has already deposited the
amount of Rs.87,98,999/-, which has been deposited with the
nationalized bank, as contended by the learned counsel for both the
sides and, therefore, there may be the interest accrued thereon. If
by interim order, the execution of the sale-deed of the property in
question is stayed, there is no reason why the said amount should not
be permitted to be withdrawn to the original plaintiff, but he should
file an undertaking to this Court that as and when it is so directed,
the said amount shall be re-deposited with the Court. In our view, on
the aspect of equitable consideration, the modification to the
earlier ad-interim order is required to be made.
5. Hence, the
following order :
By interim order,
it is directed that –
[A] There shall be
stay against execution of the judgment and decree of the trial Court
for execution of the sale-deed of the property in question on
condition that the appellant as well as respondent nos. 2, 3 and 4
shall also maintain the status-quo qua title, possession and
construction of the property in question until final disposal of the
present appeal.
[B] It is further
observed that the respondent no. 1 – original plaintiff shall
be at liberty to withdraw the amount of Rs.87,98,999/- with the
accrued interest thereon out of the investment made by the Court,
upon filing the undertaking with this Court and copy whereof shall be
produced before the trial Court, that he shall re-deposit the amount
with interest, if it is so directed by this Court in the present
appeal, within period of one month from the date of direction which
may be issued.
The application
stands disposed of accordingly.
[
JAYANT PATEL, J. ]
[
J.C. UPADHYAYA, J.]
*
Pansala.
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