Bombay High Court
Sayyed Sharif S/O Sayyed Sikandar vs Manoj S/O Rajendra Gupta on 12 December, 2023
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.6368/2023
Sayyed Sharif S/o Sayyed Sikandar
Vs.
Manoj S/o Rajendra Gupta
Office Notes, Office Memoranda Court's or Judge's orders
of Coram, Appearances, Court's
orders or directions and
Registrar's orders
Ms. S.F. Mirza, Advocate for petitioner
Mr. Vijaykumar Paliwal, Advocate for Respondent
CORAM: AVINASH G. GHAROTE, J.
DATED : 12th December, 2023
It is not disputed that the suit for specific
performance filed by the respondent bearing S.C.S.
No.6/2018 for enforcement of an agreement dated
28/10/2010 in respect of field survey no.12/1,
admeasuring 4.38 HR, as described in para 2 of the
judgment dated 09/3/2021 (page 20), has been
dismissed by the learned trial Court. The finding
rendered is that under the said agreement the
respondent / plaintiff has paid only an amount of
Rs.1,51,000/-. It is also not in dispute that during
the interim period the part of the land of survey no.
12/1 admeasuring 0.37 HR has been acquired by the
railways, for which a compensation of
Rs.2,23,87,200/- has been awarded. In appeal filed
by the respondent, on an application below Exh.34,
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the petitioner has been restrained from receiving the
compensation awarded in L.A.C. No. 17/2/2023, by
the order dated 17/8/2023, which is impugned in
the present petition.
2. Ms. Mirza, learned counsel for the
petitioner contends, that such a restraint, could not
have been placed upon the right of the petitioner to
receive the compensation, moreso, when the finding
rendered is that only an amount of Rs.1,51,000/-
has been paid by the respondent and the claim of the
respondent for specific performance has been
rejected. She submits that it would be, therefore,
necessary to permit the petitioner to withdraw the
compensation and in order to secure the interest of
the respondent vis-a-vis the consideration claimed to
have been by him of Rs.1,51,000/- suitable
recompense, could be made by directing deposit of
some amount to secure it for which the petitioner is
willing to deposit a sum of Rs.10,00,000/- from and
out of the compensation which may be received by
her.
3. In my considered opinion, this would be a
proper course of action, for the reason that the
respondent has already lost his claim for specific
performance and in fact a false plea of payment of
more consideration has been made, which has been
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negated by the learned trial Court by holding that
what has been paid is only Rs.1,51,000/-. The
petitioner, cannot be held at ransom at the behest of
the respondent, in this case on account of an appeal
being filed by him. It is necessary, therefore, to
balance equities, considering which, the impugned
order dated 17/8/2023 is hereby modified by
permitting the petitioner to withdraw and receive
the compensation of Rs.2,23,87,200/- awarded by
the Land Acquisition Officer and upon receipt of the
same, deposit a sum of Rs.10,00,000 in the learned
appellate Court, which shall be kept in interest
carrying mode, till the decision of the appeal.
4. The petition is allowed in the above terms
No costs.
JUDGE
MP Deshpande
Signed by: Mr. M.P. Deshpande
Designation: PA To Honourable Judge
Date: 13/12/2023 18:02:03
