Bombay High Court
M/S . D.K. Enterprises ... vs Jayesh Shenvi Mumbai- 400068 on 15 December, 2022
Bench: Madhav J. Jamdar
911 sast 99333.20 with IAs 862.doc
Dusane
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL (ST.) NO.99333 OF 2020
WITH
INTERIM APPLICATION NO.862 OF 2021
M/s D.K. Enterprises, Thane ...Appellant
Vs.
Mr. Jayesh Shenvi, Mumbai ...Respondent
BHALCHANDRA
GOPAL DUSANE
Mr. R.D. Suryawanshi i/by Mr. Suraj Naik for
Digitally signed by
BHALCHANDRA
GOPAL DUSANE
Date: 2022.12.19
18:49:19 +0530
Appellant.
Mr. Yogendra Kanchan for Respondent.
Mr. Gopal Dubey, Constituted Attorney of Appellant.
Mr. Jayesh Shenvi for Respondents.
CORAM: MADHAV J. JAMDAR, J.
DATE: 15th DECEMBER, 2022
P.C.:
1. Heard Mr. Suryawanshi, learned Counsel appearing for the
Appellant and Mr. Kanchan, learned Counsel appearing for the
Respondents.
2. This Second Appeal was heard on 6 th December, 2022, 7th
December 2022, 8th December 2022 and 14th December 2022.
3. This Second Appeal takes exception to the judgment and
order dated 4th November 2020 passed by the learned
911 sast 99333.20 with IAs 862.doc
Maharashtra Real Estate Appellate Tribunal, Mumbai in Appeal
No. AT006000000041897.
4. By the impugned order dated 4th November 2020, order
dated 25th October 2019 passed by Member-1, MAhaRERA in
Complaint No. CC006000000079158 was set aside and the
Appellant/Promoter was directed to execute and register the
agreement for sale in respect of Flat no. 705 in favour of the
Respondent as per terms and conditions decided between the
parties within three months from the date of said order.
5. Mr. Suryawanshi submitted that the said Flat No. 705 on
7th Floor was thereafter allotted to Mr. Khalid Gori. In view of
this, parties carried out negotiations and arrived at Consent
Terms.
6. Both the learned Counsel have tendered Consent Terms
dated 15th December 2022. The Consent Terms are taken on
record and marked 'X' for identification. The Consent Terms read
as under:
CONSENT TERMS
"The Appellant and Respondent hereto have settled all
their disputes under the aforesaid appeal amicably and
wish to record the terms and conditions of the settlement
as under:
(i) It is agreed, declared and confirmed by the Appellant
and Respondent (hereinafter collectively referred to as
911 sast 99333.20 with IAs 862.doc
"Parties") that the Appellant will execute a registered
Agreement for Sale in respect of Flat No.705 on the 7 th
Floor in Building No. 2 having area admeasuring 366 Sq.
Ft. carpet area in the project known as "K.D. Hermitage",
situate, lying and being at Village Navghar, Taluka and
District Thane now within the limits of Mira Bhayandar
Municipal Corporation (hereinafter collectively referred to
as "said flat") for a total consideration of Rs. 25,00,000/-
(Rupees Twenty Five Lakh Only) within a period of one
month from the date of filing the present consent terms.
(ii) It is agreed, declared and confirmed by the parties
that the Appellant will get cancelled the Allotment letter
dated 30th November, 2018 from Mr. Khalid Gori being the
earlier allottee with respect to the said flat within a period
of three weeks from the date of filing the present consent
terms.
(iii) It is agreed, declared and confirmed by the parties
that if there is any claim by way of any litigation initiated
by Mr. Khalid Gori in respect of the said flat, then the
Appellant shall indemnify the Respondent in respect of the
same, and shall reimburse to the Respondent any
expenses incurred by the Respondent to defend the same.
(iv) It is agreed, declared and confirmed by the parties
that upon execution of the registered agreement for sale
with respect to the said flat, the Respondent will pay to the
Appellant a total consideration amount of Rs. 25,00,000/-
(Rupees Twenty Five Lakh Only).
(v) It is agreed, declared and confirmed by the parties
911 sast 99333.20 with IAs 862.doc
that the booking amount earlier paid by the Respondent
with respect to the said flat i.e. Rs. 2,92,500/- (Rupees
Two Lakh Ninety Two Thousand Five Hundred Only) vide
Booking Form dated 29th August, 2010 will not be included
in the consideration amount of the said flat i.e. Rs.
25,00,000/- (Rupees Twenty Five Lakh Only) which will be
paid by the Respondent on execution of the registered
agreement for sale of the said flat.
(vi) It is agreed, declared and confirmed by the parties
that the stamp duty and registration charges of the said
flat will be borne by the Respondent.
(vi) It is agreed, declared and confirmed by the parties
that the possession of the said flat will be handed over to
the Respondent within a period of four weeks upon
execution of the agreement for sale with respect to the
said flat without any extra charges to be paid by the
Respondent except the consideration amount of
Rs.25,00,000/- (Rupees Twenty Five Lakh Only).
(viii) It is agreed, declared and confirmed by the parties
that the judgment, decree and order dated 4.11.2020
passed by the Ld. Chairperson, Ld. Member (J) and Ld.
Member (A) of the Maharashtra Real Estate Appellate
Tribunal, Mumbai in Appeal No. 41897 of 2019 will be
modified after filing of the present consent terms before
this Hon'ble Court.
(ix) It is agreed, declared and confirmed that after filing
of the present consent terms, the Respondent shall
withdraw all his objections, complaint, execution
911 sast 99333.20 with IAs 862.doc
applications and writing if any before any authorities with
regard to the subject dispute and shall co-operate with the
Appellant.
(x) It is agreed, declared and confirmed that the Parties
hereto are consenting to the present consent terms
without any coercion or undue-influence. The Parties
hereto shall not file and/or initiate any proceedings before
any court of law and/or any authorities in future for
claiming any nature of compensation subject to the filing
of the present consent terms.
(xi) It is agreed, declared and confirmed that all the
claims of Respondent in the present dispute stands
unconditionally withdrawn upon filing of the present
consent terms.
(xii) The Parties agree that, the order passed by this
Hon'ble Court, in terms of present consent terms shall be
binding upon the Parties.
(xiii) The parties hereby agree and undertake to execute
or cause to be executed or done all such acts, deeds,
things, matters and execute such letters and/ or
applications and/or documents as are necessary to
expedite, to give better and further effects to these
Consent Terms and agree to co-operate with each other in
this regard. The Parties represent that the persons
executing these Consent Terms on each of their behalf are
competent and authorized to do so, and neither party shall
challenge these Consent Terms on the ground that it was
executed by a person not authorized to do so or the person
911 sast 99333.20 with IAs 862.doc
was incompetent to do so. These Consent Terms shall be
valid, binding and in force against the Parties', its partners,
successors or permitted assignees.
(xiv) No modification of these Consent Terms shall be
valid and be given effect to unless made in writing, signed
and agreed upon by all the Parties.
(xv) The Parties agree and undertake that they request
this Hon'ble Court to pass an order taking on record these
Consent Terms in the above Appeal.
(xvi) The parties shall bear their own costs."
7. Mr. Gopal Dubey, who is constituted attorney of the
Appellant-Firm is present in the Court. Respondent-Jayesh
Shenvi is also present in Court. The Consent Terms are also
signed by the respective Advocates. Mr. Gopal Dubey,
constituted attorney of the Appellant as well as Mr. Jayesh
Shenvi, the Respondent state that the Consent Terms are arrived
at as per their agreement and they have signed the Consent
Terms after understanding the same.
8. Order passed by MAhaRERA is modified in terms of the
Consent Terms.
9. Mr. Suryawanshi states that on the instructions of the
Appellant, the Appellant undertakes to execute registered
agreement for sale in respect of said Flat No. 705 within a period
911 sast 99333.20 with IAs 862.doc
of one month from today and possession of the said Flat will be
handed over to the Respondent simultaneously within said one
month.
10. The Respondent, who is present in the Court undertakes
that simultaneously at the time of execution of registered
agreement of sale in respect of said Flat No.705, total
consideration of Rs.25.00 Lakhs will be paid to the Appellant.
11. Mr. Suryawanshi, learned Counsel appearing for the
Appellant states that various obligations imposed on the
Appellant in the Consent Terms will be complied within time limit
as agreed in the Consent Terms and the Appellant undertakes to
do the same in the time limit.
12. The Respondent, who is present in Court also states that
he undertakes to comply with his part of the obligations as
mentioned in the Consent Terms within agreed time limit.
13. Undertakings given by both Appellant and Respondent are
accepted.
14. Second Appeal is disposed of in terms of Consent Terms
and above directions.
15. In view of disposal of the Second Appeal, nothing survives
in the Interim Application and the same is also disposed of.
(MADHAV J. JAMDAR, J.)
