Dismissed

Gunvant Babubhai Parekh v. Jost S Engineering Co. Ltd.

Bombay HC24 Sept 2010APP/1149/2010

Case brief

AI extract

What is this about?

The High Court of Judicature at Bombay dismissed a petition appeal challenging a Single Judge's order upholding an impugned order which rejected an application to modify a consent decree. The court held that the appellant, having settled the matter via consent decree after authorizing their advocate to settle, could not seek to tamper with the decree on alleged wrong assumptions regarding interest

What did the court decide?

The appeal was dismissed, the impugned order was upheld, and no interference was necessary.

Gunvant Babubhai Parekh Vs Jost S… — Contract and Commercial Disputes | Bombay HC (2010)

APPL+439

mss

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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APPEAL (L) NO. 439 OF 2010

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GUNVAN T BALUBHAI PAREKH .. APPELANT

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Vs.

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JOST’S ENGINEERING CO. LTD. .. RESPONDENT

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Mr. Q. M. Ashfaq for the appellant

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Mr. A. S.Daver with Mr. G. S. Poojary i/b Cr. Bayley & Co. for respondent

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CORAM: SMT. RANJANA DESAI & R. V. MORE, JJ. DATED: 24/9/2010

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P.C.

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The appellant is original plaintiff. The appellant filed a

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company petition against the respondent company being Company Petition No. 475 of 1986. On 4/2/87 learned Company Judge directed the respondent to deposit a sum of Rs.5,24,500/- in this court. Learned Company Judge directed that, if the amount is deposited on or before 29/4/87 the company petition shall stand

APPL+439

mss

dismissed. The appellant was directed to establish his claim by filing an appropriate suit. Suit was directed to be filed on or before 8/6/87. On such suit being filed, the amount deposited was to be transferred to the credit of the suit so filed and the Prothonotary and Senior Master of this court was directed to invest the amount in fixed deposit with the State Bank of India or any nationalized bank for such period as the Prothonotary thinks fit. The amount was deposited by the respondent as directed. The appellant accordingly filed suit in this court being Suit No. 1753 of 1987. The amount of Rs.5,24,500/which was transferred to the suit account was invested by the Prothonotary & Senior Master. The appellant and the respondent settled the matter. On 20/11/06 the suit was disposed of by consent. Consent decree was passed. The suit was decreed in the sum of Rs.5,25,000/- together with interest thereon at the rate of 6% p.a. from the date of the suit till payment and/or realisation.

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In the disposed of suit the appellant took out Notice of Motion No. 4468 of 2006 praying that the consent decree dated 20/11/06 be modified and the appellant be awarded Rs.5,25,000/- with interest @ 12% per annum on the said Rs.5,25,000/- from the date of the suit till payment and/or realisation. By the impugned order learned Single

APPL+439

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Judge has dismissed the motion, hence this appeal.

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It is stated in the affidavit in support of Notice of Motion No. 4468 of 2006 that while agreeing to settle the matter appellant’s advocate was under the impression that the interest would be compounded every year from the date of the suit and the total amount which the appellant would get would be much more than Rs.13-14 lakhs. On this wrong assumption of his advocate the appellant is stated to have agreed to the settlement. It is in these circumstances that the present notice of motion is taken out for modification of the consent decree dated 20/11/06.

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In our opinion, learned Single Judge has rightly dismissed the motion. It is pertinent to note that in the same affidavit to which, we have made a reference hereinabove the appellant has stated that as per the information gathered by him from the office of the Prothonotary & Senior Master, the amount of Rs.5,24,500/- deposited by the respondent in this court and which was invested by the Prothonotary & Senior Master, as directed by this court, has now swelled to Rs.25,22,410—72. It is obvious, therefore, that the notice of motion was taken out by the appellant to try to get more amount

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from the amount of Rs.25,22,410-72. That cannot be allowed.

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Appellant’s advocate has reiterated the stand taken in the affidavit in support of the notice of motion. We are not impressed by the appellant’s case. The appellant had given authority to his advocate to settle the dispute. The appellant agreed to the consent decree being passed. The appellant cannot turn round and say that on the alleged ‘wrong assumption’ he agreed to settlement. He is presumed to have known how much amount he would get pursuant to the consent decree. Consent decree cannot be tampered with in

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this manner. No interference is necessary with the impugned order.

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6. Appeal is dismissed.

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(SMT. RANJANA DESAI, J.)

Gunvant Babubhai Parekh v. Jost S Engineering Co. Ltd.

Case brief

What is this about?

What did the court decide?

Gunvant Babubhai Parekh v. Jost S Engineering Co. Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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