ASHOK BABULAL AGRAWAL Vs. KANTILAL SAKHARAM PAREKH

JUDGEMENT

(1.) Rule. Rule is made returnable forthwith. Learned Adv. Mr. Rohit Deo waives service for respondent nos. 1 and 2, and Respondent Nos. 4 to 10, and learned Asstt. Govt. Pleader, Mr. K.L. Dharmadhikari, for respondent no.11. Heard learned counsel for the rival parties. By consent of rival parties, this Writ Petition is taken up for final hearing.

(2.) The petitioner, who is the original plaintiff in Special Civil Suit No. 29 of 2011, is aggrieved by the order dated 6th August, 2015, passed by the trial Court below Exh.89, thereby rejecting the application moved by the petitioner in which it was prayed that the compromise recorded between the petitioner and the respondent nos. 1 and 2 was not binding on the petitioner.

(3.) The facts, in brief, are that the petitioner had filed Special Civil Suit No. 29 of 2011 seeking a declaration that the defendant Nos. 1 to 3 were intending to defeat the rightful claim of the plaintiff that was based on an agreement of sale dated 27th February, 2007 that was executed for purchasing the suit property. A further relief was prayed that the defendant No.3 should be directed to release the suit property that was shown to have been mortgaged with it so as to enable the plaintiff to recover the possession of the same. During pendency of this suit, the plaintiff and defendant Nos. 1 and 2 entered into a compromise on 16th March, 2012. As per this compromise, it was agreed between the said parties that they would allow the defendant No.3 Co-operative Bank to sell the suit properties in auction, after which the said Bank would be at liberty to adjust the dues of defendant Nos. 1 and 2. Out of the remaining amount, Rs.50,00,000-00 [rupees fifty lakhs only] were to be paid by the said Bank to the plaintiff towards refund of earnest amount. On 26th September, 2012, the trial Court accepted the compromise, and directed a decree to be drawn in those terms. The suit was directed to proceed against the defendant No.3 alone. The original plaintiff, thereafter, on 10th March, 2014, moved an application below Exh.89, praying that the compromise arrived at between the parties be set aside, on the ground that the terms and conditions agreed were not followed by the defendant Nos. 1 and 2 and hence the terms of compromise were not binding on the plaintiff. By the impugned order, the trial Court held that the question as to whether the subsequent acts of the defendant Nos. 1 and 2 were based on false and fabricated documents was a matter to be considered by adducing evidence. It further observed that the compromise decree was not liable to be set aside on the basis of bare contentions of the plaintiff. The application, therefore, came to be rejected.