Mr. Sakharam Maruti Bhondave v. Mr. Vinayak Pandharinath Bhongale and Ors.

Bombay HC19 Oct 2022FA/121/2017

Case brief

AI extract

What is this about?

The High Court of Bombay recorded consent terms between the appellant and respondent No.1 settling a specific performance dispute regarding agricultural land. The parties agreed on financial consideration and allocation of a future residential flat, discharging the court's earlier decree and modifying the lower court's judgment. The appeal against respondents 2 to 4 was disposed of.

What did the court decide?

The judgment and decree of the Civil Judge dated 23/09/2016 were modified to reflect the settlement terms including payment of consideration and allotment of a flat; appeal against respondents 2-4 dis

Mr. Sakharam Maruti Bhondave Vs Mr. Vinayak Pandharinath… — Specific Performance | Bombay HC (2022)

¶1

IN THE HIGH COURT OF JUDICATURE^{AT BOMBAY} CIVIL APPELLATE J URISDICTION FIRST APPEAL NO. 12I OF 2017

¶2

Sakharam Maruti Bhondave ) Age about 75 years, Occ.: Agricufturist, ) R/ at and Post Ravet, Tal.: Haveli, Dist.: Pune )...Appellant

¶3

Versus
1.Mr. Vinayak PandharinathBhong	ale )
Age:60years,Occ.:Agriculture &Bus	iness)
FyatRadhanagari Housing Society, Digh	i^Road, )
Bhosari, Tal. Haveli, Dist.Pune	)
2.TukaramMarutiBhondave	)
Ageabout71years, Occ.: Agriculturist,	)
3.ShivramMaruti Bhondave	)
Ageabout66years, Occ.: Agriculturist,	)
4. Mr.Shantaram MarutiBhondav	e )
Ageabout62years, Occ.:Agricuh	urist,)
R:/atand PostRavet,Tal.:Haveli, Dist.	:Pune)...Respon	dents
,!P'b-		'I,t7 Qar I

¶4

CONSENT TERMS

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A. The Respondent No.l is the Original Plainffi, the Appellant is Original Defendant No.2, and Respondent Nos.2 to 4 are original Defendant Nos.1, 3 an 4 respec*ively in Special Civil Suit bearing No.206 of 2012 filed by the Plaintiffs before Civil Judge Senior Division Pune, seeking specific performance of the Agreement daled 1710812O10 executed by and between the Respondent No.1 (Org. Plaintiff) and the Appellant and Respondent Nos.2 to 4 (org. Defendants) and for compensation, perpetual, injunction and for other consequential prayers as sought therein.

¶6

B. lt is the contention of the Plaintiffs in the suit that the said Agreement dated 1710812010 was executed by the Defendants^'1 to 4 (Four brothers) whereby they have agreed to assign/convey all their right, title and interest and handover possession in respect of all that piece and parcel of land admeasuring area 12 R, 10R & 2R out of survey No. 23/1 0/ 1 , 2312 & 23n respectively situated at vitlage Ravet, within the limits of Pimpri Chinchwad Municipal Corporation, Tal -Haveli, Dist. Pune, which is more particularly prescribed in paragraph 1 of Special Civil Suit No. 20612012. (Hereinafter referred as 'Suit Property").

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C. During the pendency of the said Special Civil Suit No. 2OG|2O'12, Original Defendant No.l, 3 and 4 (Respondents 2 Vzr.trr^, ffi; N VP

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to 4) settled the said matter^{andexecutedan appropriate} Conveyance/ Sale Deed respect^{of their sharein the suit} property in favour of the Respondent^{No.'lherein and duly} handed over^{possessionof the same. Therefore' as suchthe} suit proceeded only^{against Original DefendantNo'2} (Appellant) in respec{ of his undivided^{share in the Suit} property.

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D. Upon considering the contentions^{of the parties,the Ld' Civil} Judge Senior Division^{Pune by its Judgment and Decree} daled 23t0912O16 was^{pleasedto partly allow thesuit and was} pleased to grant a decree of specific^{performanceof the} Agreement daled^{'lT lOBl2Ol 0 in respect of suit landupon} payment of balance consideration of^{Rs"l 1,75,000/- to the} Defendant No.2^{(Appellant) andwas furtherpleasedto direct} to execute a Sale Deed^{in respect of the suit property within2} months and handover^{peaceful and vacant possessionof his} share in the suit^{property and further was pleased to} permanently restrain the Appellant^{from creating'thirdparty} interest in respect^of the^{suit property.}

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E. The captioned First^{Appeal is filed by the Appellant} challenging the said^{Judgementand Decree dated 23109/2016} passed by Ld. Civil Judge,^{Senior Division, Pune in Special} Civil Suit No. 206/2012^{wherebythe Ld. Civil Judge,Senior}

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Division, Pune was pleased to partly decree the Suit filed by the Respondent no. l herein.

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F. Thereafter, pending the above-captioned Appeal, the Appellant approached the Respondent No.1 to settle the said dispute between the parties amicably.

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G. Accordingly, the Appellant and the Respondent No.1 have mutually settled the differences and have agreed to execute Consent Terms and draw consent Decree on the terms which are recorded as follows:

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That the Appellant (Original Defendant No. 2) hereby agrees, undertakes, and declares that the Respondent No.1 (Original Plaintiff) was always ready and willing to specifically perform the Agreement dated 17lOBl20'10 and further the Appellant hereby agrees, undertakes and declares that the Respondent No.1 is entitled for the grant of Specific performance of the Agreement to Sale Dated 1710812010.

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The Appellant (Original Defendant No.2) hereby agrees, declares, undertakes and confirms that he has all the right, title and interest in respect of his share of the suit property and is in vacant and peaceful possession of the of his share in the

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suit property. \rd -?46?l\aS^u- V⁽

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The Appellant^{(Original DefendantNo.2) herebyagrees'} declares, undertakes,^{and confirmsthat he has not created} any third-party^{interest or partedwith any possessionor} license of the suit^{property and the suit property is free of any} encumbrances, charge,^{lienand/or mortgage, etc'}

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The Appellant hereby^{declares, undertakesand confirms that} the Appellant herein^{will executean appropriate Conveyance/} Sale Deed and any^{other related documentsi'e Power of} attomey and/or^{development agreement,etc as per the} demand and requirement^{of the Plaintiff (Respondentno'l) in} respect of his share^{and / or whatever rights the Appellanthas} in the Suit Property^{which is particularlydescribed in} paragraph t of Special Civil^{Suit No. 206/2012and thereby} convey/assign all^{his right, title and interest in the suit property} in favour of the^{RespondentNo.1 and handover vacantand} peaceful possession of the same,^{on or before3011112022'}

¶20

The Appellant^{hereby agrees, declares, and undertakes that} the Respondent at^{the time of executing and registering the} Sale Deed and^{any other related documentsi'e Power of} attorney and/or development^{agreement,etc as per the} demand and requirement^{of the Plaintiff (Respondentno"l),} will handover^{physical possession of the suit property whichis} more particularly^{described in Paragraph 1 of the Plaint and}

¶21

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also pass on free, clear and marketable title to the Respondent No.1 which will be free of any encumbrances, to and for the enjoyment of the Respondent No.'t .

¶24

ln lieu of consideration of the aforesaid Conveyancei Sale Deed and any other related documents i.e Power of aftomey and/or development agreement, etc as per the demand and requirement of the Plaintiff (Respondent no.1 ), to be executed by the Appellant in favour of the Respondent No.1, as per the terms mentioned above, the Appellant shall be entifled for the following consideration:

¶25

a. An amount of Rs. 85,75,000/- (Rupees Eighty five Lakhs seventy five thousand Only) [ Rs. 5,75,000/- already paid and Rs. 40,00,000/- upon executing and registering an appropriate Conveyance Deed/ Sale Deed and any other related documents i.e Power of attomey and/or development agreement, etc as per the demand and requirement of the Plaintiff (Respondent no.1) (as per the draft shared by the Respondent No.1) by way Cheques/Demand Drafts/RTGS and further Rs. 40,00,000/- (by way Cheques/Demand Drafts) after 30 days of executing and registering the conveyance/ Sale Deed and any other related documents i.e power of attomey and/or development agreement, etc as per the

¶26

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¶27

demand and requirement^{of the Plaintiff (Respondent} no.1 )1.

¶28

b. Allotment of Residential^{AparfnenUFlatof approx.',l000} sq. ft. (Saleable) in the vicinity^{of the suit property(on} S.no 23, of which suit^{propertyis a part of) whichwill be} constructed by the Respondent^{No.'t or any of his} Assignees in future.

¶29

The Appellant agrees, confirms,^{and undertakesthat the} aforesaid entitlemenUconsideration^{is a laMul consideration} for executing and registering of^{the aforesaidsaid Sale Deed/} Conveyance Deed and any^{other related documents i.e Power} of attomey and/or development^{agreement,etc as per the} demand and requirement^{of the Plaintiff (Respondentno.'1)} (as per the draft shared by the Respondent^No.1)and Appellant will not be entitled^{for anyturther} amounts/consideration.

¶30

The Appellant agrees,^{confirms,and undertakesthat the} Appellant has already received^{an amountof Rs 5,75,000/-} (five lakhs seventy thousand only) and^{is entitled for} remaining/balance amount of^{Rs 80,00,000/- (Rs Eighty Lacs} Only) as^per the schedule^{mentioned above.}

¶31

The Appellant hereby agrees,^{undertakes, confirms,and} declares that further as^{regards to the allotment of a} residential flaVapartment of^{1000 sq. ft. (saleable) in the}

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vicinity of the suit property (on S.no 23, of which suit property is a part o0, the Respondent No.l, his assignees and agent, or anybody as per instructions of Respondent No.1 who will execute an appropriate allotrnenUAgreement to sale/agreement in future as and when the suit property is put to actual development. The said allotmenUAgreement to sale/agreement will be executed only after the suit property ls amalgamated with the adjoining area and an appropriate plan is sanctioned by the appropriate planning authority and after appropriate Certificate of Registration is granted by the RERA authority / regularizing authority and only after actual construction on the suit property alongwith amalgamated property is commenced and thereafter within 3 months from the date of which the Appellant intimates and calls upon the Respondent No.1 to execute an appropriate allotrnent /Agreement to Sale/ Agreement in regards to the said FlaUapartment.

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10.The parties hereby agree, undertake, confirms, and declare that the Stamp Duty / Taxes/ lnfrastructural cosUchargers / Development Charges/ electricity metre charges and/or any other related charges, expenses which are payable in lieu of execution of an allotmenVAgreement to sale/agreement of the resadential flauapartment of approx. 1000 sq.ft. (saleable), as mentioned above, shall be bome categorically by the '*,'$Y frretD VF^G ,ll

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Appellant and the Respondent^{No.1will not be responsiblefor} the said^{payments/liabilities.}

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'1 1 . The Appellant hereby agrees, undertakes, confirms, and dedares that he shall not create^{any third-partyinterest and/} or alienate and/ or deal^{with the suit property and/ or create} any kind of encumbrance,^{lien,charge,and/ or part with} possassion of the suit property. The Appellant^{is hereby} permanently restrained from creating any third-party^interesU alienate and/ or deal with^{the suit property and/or from} creating any charge,^{lien or encumbrance on the suit property} and/ or^part with^{possession of the suit property.}

¶37

't2.The parties hereby agrees, undertakes, confirms, and declares that the time^{is an essence of the present Consent} Term/ Decree andⁱⁿ the event^{the Appellant does not execute} and register an appropriate Sale^{Deed/conveyancedeed and} any other related documents^{i.e Powerof attomey and/or} development agreement, etc as^{per the demand and} requirement of the Plaintiff^{(Respondent no.1) (as per the draft} shared by the Respondent No.1)^{therebyconveying} Appellants all right, title and^{interestin the suit propertyon or} before 30/11/2022, lhenⁱⁿ that^{event, without recourseand} intimation to the Appellant, a Court^{Commissionershall stand} appointed on the share of the^{Appellantin the suit property} who will take over the^{physical possessionof the share of the}

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Appellant in the Suit Property and the Court commissioner and/ or his agent shall execute and register an appropriate Conveyance Deed/ Sale Deed and any other related documents i.e Power of attomey and/or development agreement, etc as per the demand and requirement of the Plaintifi (Respondent no.l) (as per the draft shared by the ;. Respondent No. t ) in favour of the Respondent No.1 on behalf of the Appellant and handover vacant, peaceful and physical possession to the Respondent No.l of the share of the Appellant in the suit property.

¶41

For avoidance of any doubt, it is clarified and the parties declare, confirm, undertake and agree that in the event the Appellants failed to comply with its obligation in the present Consent Term, the Respondent No.1 Original Plaintiff shall be entitled to fully execute the said Consent Terms / Decree by seeking appointment of Court Commissioner to execute and register an appropriate Conveyance Deed/ Sale Deed and any other related documents i.e Power of attomey andior development agreement, etc as per the demand and requirement of the Plaintiff (Respondent no.'l) (as per the draft shared by the Respondent No.1) in favour of the Respondent No.1 on behalf of the Appellant and handover vacant, peaceful and physical possession to the Respondent No.1 of the share of the Appellant in the suit property.

¶42

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Further in the event the Appellant^{fails to comply with its} obligation to execute and^{register an appropriate Conveyance/} Sale Deed and,handover^{physical and peaceful possessionof} the share of the Appellant^{in the suit property, and the} Respondent No.'l is constrained^{to seek appoint of Court} Commissioner and / or^{execute the said Decree' the Appellant} would be ehtitled only for^{the amounV consideration as has} been adjudged and declared^{in the judgmentand decree} dated 231Q9t2016^{passed by the Ld. Senior Judge, Civil} Division, Pune in Special^{Civil Suit No. 206/2012 i.e Rs.} 1 1 ,75,0001 without^{anY interest.}

¶45

1S.The Judgment and Decree^{dated23109/2016 passed by the} Ld. Senior Judge, Civil^{Division,Pune in SpecialCivil Suit} No.2OGl2012 stands modifi^{ed accordingly.}

¶46

16.The SuiU Appeal stand^{disposedoff against Respondent} Nos.2 to 4 i.e Original Defendant^{Nos.1,3 and 4.}

¶47

17.The Respondent No.'|l Org.^{Plaintiff is entitledto withdrawthe} amounts deposited^{before the Hon'bleCivil Judge,Senior} Division, Pune and/ or appropriate^{authority as per the} Judgement and Decree^{dated 23109/2016. The Ld. Civil} Judge Senior Division, Pune^{is directed to facilitate and pass} necessary order/^{stepsfor refund of the amounts deposited.}

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'18.The parties have liberty to apply in case of any difficulty.

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19.The parties to act on^{the CertifiedCopyof the present}

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Consent Terms.

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¶53

Decree be drawn accordingly.

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2l . Court fee be refunded as per Rules.

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Date: l3 [t o I zo zr&a^ETh \ drr'<sup></sup>

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\APpellant

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Sakharam Bhondave wbe

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Vinayak Bhogale

¶59

Respondent No.1

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Advocate for the Appellant N.V. Vechlekar & Co.

¶62

r,\ | .1' /,\ \r \JU_\

¶63

Chaitanya B. Nikte

¶64

Advocate for the Respondent No.1

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<br>

Mr. Sakharam Maruti Bhondave v. Mr. Vinayak Pandharinath Bhongale and Ors.

Case brief

What is this about?

What did the court decide?

Mr. Sakharam Maruti Bhondave v. Mr. Vinayak Pandharinath Bhongale and Ors.

Case brief

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What did the court decide?

What the court decided

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