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FA/5435/2007 4/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 5435 of 2007
With
CIVIL
APPLICATION No. 15520 of 2007
In
FIRST APPEAL No. 5435 of 2007
For
Approval and Signature:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
HONOURABLE
MR.JUSTICE K.M.THAKER
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ? NO
2
To be
referred to the Reporter or not ? NO
3
Whether
their Lordships wish to see the fair copy of the judgment ? NO
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? NO
5
Whether
it is to be circulated to the civil judge ? NO
=========================================================
MAHARASHTRA
MITRA MANDAL THRO' MANAGING TRUSTEE - Appellant(s)
Versus
NIKHILBHAI
NAROTTAMBHAI MISTRY & 54 - Respondent(s)
=========================================================
Appearance
:
MR
RS SANJANWALA for
Appellant(s) : 1,
MR JB PARDIWALA for Respondent(s) : 1,
RULE
SERVED for Respondent(s) : 2 - 3, 3.2.2, 15,17 - 27,29 - 41, 45,48 -
52, 55,
None for Respondent (s) : 3,
RULE NOT RECD BACK for
Respondent(s) : 4 - 6, 8, 42, 44,
MR PRAKASH K JANI for
Respondent(s) : 7,9 - 14.
RULE UNSERVED for Respondent(s) : 16,
28, 43,46 -
47.
=========================================================
CORAM
:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
and
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 24/02/2010
ORAL
JUDGMENT
(Per : HONOURABLE MS. JUSTICE
R.M.DOSHIT)
Learned
advocate Mr.S.H.Sanjanwala has appeared for the appellant. He states
that the Appeal is preferred against the respondent No.1 decree
holder. Rest of the respondents – co-defendants are not necessary
parties to this Appeal; nor any relief is claimed against them; nor
their interest is adversely affected in any manner. He, therefore,
seeks leave to delete the respondent Nos.2 to 55.
Leave
is granted. The names of the respondent Nos.2 to 55 be deleted from
the cause title of this Appeal.
This
Appeal preferred under Section 96 of the Code of Civil Procedure
arises from the judgment and decree dated 11th April 2007
passed by the learned Principal Civil Judge (S.D.), Valsad in Special
Civil Suit No. 9 of 1994.
The
respondent No.1 instituted the above-referred Special Civil Suit No.9
of 1994 in the Court of Senior Civil Judge, Valsad for specific
performance of the agreement for sale dated 30th January
1991 in respect of the lands Survey Nos.95, 92 and 94 situated at
Vapi. The appellant Maharashtra Mitra Mandal (hereinafter
referred to as the Trust ) is a public charitable trust
engaged in primary and secondary education. The Trust is the
purchaser of the parcels of land Plot Nos.1, 2, 4, 5 and 6-A
ad-measuring 2200 sq.mtrs of land Survey No.94 paiki from the
purchaser of the original land owner the defendant No.2 – the
predecessor in title of the respondent Nos.3.1 and 3.2. The learned
Civil Judge has, inter-alia, passed decree for specific performance
against the appellant and others in respect of land Survey No.94
paiki ad-measuring 5 Acres 5 Gunthas. Therefore, the present
Appeal.
Pending
this Appeal, the Trust one of the judgment debtors and the
respondent No.1 – the judgment creditor have settled the dispute out
of the Court in respect of the above-referred five parcels of land
purchased by the Trust. It is agreed that the appellant is a public
charitable trust and is primarily engaged in education of the
children from the weaker sections of the society. It is further
agreed that, in lieu of the decree for specific performance, the
Trust will pay a sum of Rs.40.00 lakhs to the respondent No.1. Out
of the agreed amount the Trust has paid Rs.10.00 lakhs which has
been received by the respondent No.1. For remaining Rs.30.00 lakhs
the Trust is required to raise loan. The Trust has agreed to
borrow loan from the bank and to pay to the respondent No.1 the said
Rs.30.00 lakhs within six months from today. In case of failure of
the Trust in making payment of Rs.30.00 lakhs within six months, as
agreed, the respondent No.1 will be at liberty to pursue Special
Darkhast No.2 of 2007 pending before the Civil Court and to execute
the decree for specific performance against the Trust. It is also
mentioned that the Trust had obtained required permission from the
Charity Commissioner. In view of passage of time, the Trust will
apply for renewal of the permission. In support of the agreement the
trustees of the Trust have given an undertaking to this Court to
abide by the terms of the agreement.
The
consent terms and the undertaking be maintained on the record of the
Appeal.
In
above view of the matter, this Appeal is allowed. The impugned
judgment and decree dated 11th April 2007 passed in
Special Civil Suit No.9 of 1994 by the Principal Senior Civil Judge,
Valsad; in so far as the decree for specific performance is passed
against the appellant-Trust in respect of above-referred five parcels
of land Survey No.94 paiki is modified to the effect that the
appellant Trust, the defendant No.43, will pay a sum of Rs.40.00
lakhs to the respondent No.1 – plaintiff as agreed under the
aforesaid consent terms. In the event the defendant No.43, the Trust
fails to pay the remaining sum of Rs.30.00 lakhs within six months
from today, as agreed, the decree for specific performance passed by
the Civil Court against the Trust the defendant No.43 will stand
revived and confirmed. In that case the respondent No.1 – judgment
creditor will be at liberty to pursue execution of the decree for
specific performance passed against the appellant Trust.
The
parties will bear their own costs.
The
Registry will modify the decree accordingly.
In
view of the disposal of the Appeal, the Civil
Application stands disposed of. Interim stay, if any, stands
vacated.
(
K.M. THAKER, J) (MS. R.M. DOSHIT, J. )
syed/
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