1 IN THE HIGH COURT OF BOMBAY AT GOA CIVIL APPLICATION NO. 61 OF 2010 1. Smt. Arundhati Vithoba Naik Panvelcar, wife of Dr.Vithoba Vishnu Naik Panvelcar married of full age, housewife, residing at 'Panorama' Apartments Altinho, Panaji-Goa. 2. Dr. Vithoba Vishnu Naik Panvelcar, son of late Vishnu Naik Panvelcar, married, of full age, Medical Practitioner, residing at 'Panorama' Apartments, Altinho, Panaji, Goa. ... Applicants versus 1. M/s ESAR Builders A partnership firm duly constituted under the Indian Partnership Act, 1932, having its Office at Rani Pramila Arcade, Panaji-Goa. 2. Shri Sadiq Shaikh, son of Shaukat Ali Shaikh married of full age, Real Estate Developer and Partner of M/s ESAR Builders, The defendant no.1 above named residing at 19/B-1 Casa Pires, Miramar,(Dona Paula Marine Highway) P.O.Caranzalem, Ilhas, Goa. 2 3. Shri Rajendra M. Narkar, son of Mahadev Narkar, of full age, Real Estate Developer and Partner of M/s ESAR Builders, the defendant no.1 above named, residing at 2nd floor, Austin Plaza next to C.B.I. Office Altinho, Panaji-Goa. 4. Smt. Amita Vijaykumar Hede, daughter of late Loximona Mukund Porobo Colvalcar and wife of Shri Vijaykumar Sinai Hede, married, of full age, housewife, residing at 2S-4, Kamat Complex Tonca, Caranzalem, Ilhas Goa. 5. Shri Vijaykumar Hede, Son of Suryaji Hede, married, of full age, Industrial Officer, Residing at 2S-4 Kamat Complex, Tonca Caranzalem, Ilhas, Goa. 6. Shri Usno Mukund Porobo Colvalcar, son of late Mukund Porobo Colvalcar, married of full age, businessman, residing at 31st January Road, Panaji, Goa(since deceased) represented through legal heirs. 6a.Smt. Sandhya Yogesh Poi Kuchelkar Nee Smt.Sandhya Usno Porob Colvalcar, married (daughter of the deceased) of full age, residing at Ram Sita Niwas Muzawar Wada, Sanquelim Goa 403 503. 3 6b. Shri Yogesh Mohandas Poi Kuchelkar, husband of Smt. Sandhya Yogesh Poi Kuchelkar businessman, of full age, residing at Ram Sita Niwas Muzawar Wada Sanquelim Goa 403 505. 6c. Smt. Nishita Rajnish Tadkodkar nee Nishita Usno Porobo Colvalcar married(daughter of the deceased of full age), residing at Nishigandha 87-Hindwadi Belgaum 590011. 6d. Shri Rajnish Tadkodkar husband of Smt. Nishita Rajnish Tadkodkar of full age, residing at Nishigandha 87, Hindwadi Belgaum 590011. 7. Smt. Kumudini Usno Porobo Colvalcar, wife of Usno Mukund Porobo Colvalcar, of full age, housewife, residing at 31st January Road, Panaji Goa. 8. Smt. Shantabai Balkrishna(since deceased) Porobo Colvalkar, widow of Balkrishna Porobo Colvalcar, of full age, housewife, residing at Panaji Goa. 8a. Smt. Vasanti B.P.Colvalkar, daughter of Balkrishna Prabhu Colvalkar, spinster of full age. 8b. Smt. Gangabai alias Sunita B. P. Colvalkar, spinster of full age, daughter of late Balkrishna Prabhu Colvalkar 4 8c. Smt. Priya Shrikant Pai Angle, married of full age, daughter of late Balkrishna Prabhu Colvalkar 8d. Smt. Manik Raghuvir Talaulikar, married of full age, daughter of late Balkrishna Prabhu Colvalkar 8e. Smt. Milan Balkrishna Prabhu Colvalkar, spinster, of full age, daughter of Balkrishna Prabhu Colvalkar, All the above from nos.1(a) to 1(e) are residing at F-3 Chirantan Apartments, 1st Floor Neugi Nagar Ourem Rd. Panaji Goa. 8f. Smt. Laxmibai Krishna Pai Budbude, daughter of late Balkrishna Prabhu Colvalkar, married of full age, 8g. Dr. Krishna Pai Budbude, husband of Smt. Laxmibai Krishna Pai Budbude, of full age, both nos.1(f) and (g) are residing c/o Smt. Alka Sharad Naik Laura Mansion, Flat No.1 Near Magdev Temple Fatorda, Salcete Goa. 8h. Shri Shrikant Pai Angle husband of Smt.Priya Shrikant Angle of full age, residing at Sanvorcotta, Cuncolim, Salcete Goa. 5 9. Smt. Savitribai Loximona Porobo Colvalkar,(expired heirs on record 3 to 6) widow of Loximona Porobo Colvalcar, of full age, housewife residing at GG-2 Adarsh Colony Caranzalem, Ilhas-Goa. 10. Smt. Smita Vinayak Kamat Satoskar, wife of Shri Vinayak Prabhakar Kamat Satoskar, married, of full age, housewife, residing at Bazarwado, Marcela, Ponda, Goa. 11. Shri Vinayak Prabhakar Kamat Satoskar, son of Prabhakar Kamat Satoskar, married, of full age, Industrial Officer, residing at Bazarwado, Marcela, Ponda Goa. 12. Shri Purushottam Mukund Porobo Colvalcar, married of full age, retired Govt. Officer, residing at 12-B Lakeview Colony, Miramar, Panaji Goa. 13. Smt. Kranti Purushottam Porobo Colvalcar, wife of Purushottam Mukund Porobo Colvalcar, housewife, of full age, residing at 12-B Lakeview Colony Miramar, Panaji Goa. ... Respondents 6 Shri D. D. Zaveri, Advocate for the Applicants. Shri M. S. Joshi, Advocate for Respondent No.1. CORAM : N. A. BRITTO, J. DATE : 22ND DECEMBER, 2010. ORDER Heard learned Counsel on behalf of the parties. 2. The contest now remains between plaintiff Nos.3 and 4 and defendant Nos.1 to 3 in Special Civil Suit No. 129 of 1999. 3. The entire complexion of the civil suit changed after the remaining plaintiffs entered into an agreement between the said defendants as a result of which a consent decree dated 13-7-2006 came to be passed. As a result, the plaintiff Nos.3 and 4 have remained only with a share of 1/18th in the suit property surveyed under No.113 of Candola Village which by the impugned judgment has been directed to be sold to defendant Nos.1 to 3 on payment of the balance amount of Rs.2,89,132.66 with interest at the rate of 10% from 20-12-1999. 7 4. The plaintiff Nos.3 and 4 cannot claim that they are in possession of the said property when the other co-owners of the same have already sold it to defendant Nos.1 to 3. There is no dispute that the plaintiff Nos.3 and 4 were handed over shops admeasuring 73.47 sq. meters in Ana Rita Apartments at Taleigao. The plaintiff Nos.3 and 4 have been awarded compensation of Rs.17,600/- with interest thereon at the rate of 10% against the claim of plaintiff Nos.3 and 4 against defendant Nos.1 to 3 that they had not replaced the shutters, repainted the internal walls, etc. The flat in survey No.121/6 of Taleigao Village could not be handed over to plaintiff Nos.3 and 4 and for that, the learned trial Court has assigned three good reasons which are required to be endorsed, at least at this stage. These are recorded in para 15 of the judgment. Whether the plaintiffs would be entitled to an enhanced compensation for not handing over the flat in survey No.121/6 at prevailing rates of flats is entirely a different matter for which injunction as sought for need not be granted. It has been stated on behalf of defendant Nos.1 and 3 that the plaintiff Nos.3 and 4 had admitted that they are ready and willing to perform their part of the agreement i.e. the addendum agreement dated 4-5-1976 and they are willing to pay the compensation ordered by the learned trial Court. 8 5. After the consent decree dated 13-7-2006, the suit of plaintiff Nos.3 and 4 had essentially remained as a suit for compensation and whether the said plaintiffs are entitled to anything more than awarded by the Decree is a matter which can be considered at the time of hearing of the appeal without putting any fetters in the sale of the property of which the defendant Nos.1 to 3 have also become co-owners, the rights of the plaintiffs having been reduced to the extent of 1/18th share only. If at all an injunction was granted in favour of the plaintiffs by the learned trial Court by Order dated 24-11-2008 it does not mean that the same should be continued at present. The said Order dated 24-11-2008 also does not take into consideration the said consent decree. 6. In the circumstances, the application filed is hereby dismissed. N. A. BRITTO, J. RD