KALPESH MANUBHAI PATEL Vs. MIHIRKUMAR SURYAKANTBHAI SHAH

JUDGEMENT

(1.) By filing present petition under Articles 227 as well as under the provision of the Civil Procedure Code, 1908, the petitioner has prayed for quashment of the order dtd. 12/10/2023 passed below Exh.1 as well as the order dtd. 14/10/2023 passed below Exh.9 by the learned Principal Senior Civil Judge, Dabhoi in Special Execution Case No.1 of 2023 and thereby permit the petitioner to deposit the amount of Rs.3,03,59,025.00 within a period of three months before the Registry of the learned Principal Senior Civil Judge, Dabhoi.

(2.) Heard learned advocate, Mr. Salil Thakore for the petitioner, learned Senior Counsel, Mr. Shalin Mehta assisted by learned advocate, Mr. Nishit Gandhi for the respondent no.1 and learned advocate, Mr. Bhaumik Shah, for the respondent no.2.

(3.) Learned advocate, Mr. Salil Thakore submitted that the petitioner herein is the original plaintiff, whereas the respondents herein are the original defendants in the suit filed inter alia praying for a decree ordering the original defendants to execute the sale deed in favour of the original plaintiff for the land bearing Block No.426 admeasuring 15,310 Sq.Mtrs. situated in Village : Thuvati, Sub District : Dabhoi, District : Vadodara (hereinafter referred to as 'the suit land' for short). Learned advocate submitted that as the petitioner was need of money, he obtained loan from the respondents herein and at the time of availing the loan facility, a registered sale deed has been executed between the parties and at the time of execution of the said registered sale deed, they have also entered into one Memorandum of Understanding (MoU) to the effect that on returning back the amount by the petitioner, re-conveyance deed is to be executed in favour of the petitioner but the respondents herein have failed to adhere with the terms and conditions mentioned in the MoU, therefore, the petitioner is constrained to file aforesaid suit against the respondents herein for specific performance. Learned advocate submitted that however during the pendency of the suit, matter had been amicably settled between the parties and in pursuance thereto, they have entered into terms of settlement by way of preparing consent terms and on the basis of the said consent terms, the decree had been executed by the court concerned and as per the said consent terms, within a period of six months from the date of execution of the decree, the petitioner has to pay borrowed amount of Rs.3,03,59,025.00 and if the petitioner fails to repay the said amount to the respondents within six months, in that event, as per the understanding between the parties, the said period would be extended for further period of 18 months and thus in short, within 24 months, the petitioner herein had to repay the said amount to the respondents. He submitted that the decree had been passed by the court concerned on 17/7/2021 and as per the recital of the consent terms, the period of 24 months would be completed on 16/7/2023. He submitted that in fact, during interregnum period, the petitioner has tried to enter into MoU with the respondents but the respondents have resiled from his earlier version and backed out from the terms and conditions mentioned in MoU, copy of MoU is produced along with the petition. He submitted that as the said document is not signed by other side, therefore, he is not harping upon the said issue and is not binding to other side. He submitted that in the beginning of month of July, 2023, the petitioner has tried to execute the terms and conditions on the basis of the consent decree but the respondents have demanded amount of interest on the borrowed amount, therefore, the petitioner is constrained to issue notice to the respondents on 13/7/2023 as they are not agreed to adhere with the terms and conditions, therefore on 17/7/2023, the petitioner, who is decree holder, had filed execution petition before the competent court, whereupon the respondents appeared and filed purshis on 12/10/2023 specifically stating that they are ready and willing to execute the terms and conditions mentioned in the consent terms and fulfill the conditions of the decree if the decreetal amount is to be paid to them today and on the strength of the said purshis, the said application had been considered and two days' time had been granted to the petitioner to deposit the said amount before the court concerned, however admittedly when the said order was passed, at that point of time, the petitioner was not available in the court, therefore as soon as the petitioner has come to know about the said fact, immediately, the petitioner has preferred an application to extend the time of three months to deposit the said decreetal amount before the learned Civil Court on 14/10/2023 and the said application had been opposed by the respondents with vehemence and after considering the rival submissions of the parties, learned Executing Court had extended the time for further period of seven days i.e. 21/10/2023. He submitted that in fact, as per the consent terms of the decree, the applicant has to deposit the said amount on or before 16/7/2023 but on the basis of consent given by the respondents herein, the time period had been extended till 21/10/2023 and the action took place much after the expiry on 17/7/2023 on the basis of statement made by the respondents themselves before the learned Executing Court by way of declaring the said fact through purshis.